| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 42/09 |
| Hearing date | 11 Nov 2008 |
| Determination date | 12 February 2009 |
| Member | V Campbell |
| Representation | B Molloy ; A Gower |
| Location | Hamilton |
| Parties | Wilkie v Sarvee Group Management Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Respondent’s directors were mother (“J”) and son (“K”) - K’s assistant (“M”) engaged to K - K claimed issued applicant with verbal warning - Applicant claimed no warning issued, but, if was, then caused unjustified disadvantage - Applicant asked M inappropriate question during telephone call - M raised issue with J who informed K - K discussed incident with applicant and applicant explained meant no offence and apologised - K wrote to J advising applicant issued with verbal warning - However, letter never provided to applicant - Authority found applicant told behaviour inappropriate but not issued with warning - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - M claimed applicant put arm around waist and kissed hand at staff Christmas function, and made comments of a sexual nature during and after function - K rang applicant to discuss M’s complaints - Applicant alleged K angry and abusive and threatened physical violence - Applicant informed K threatening behaviour had destroyed employment relationship and forced him to resign - Applicant sought exit package and apology - K disputed applicant’s view of events and invited applicant to meeting to discuss issue - Applicant resigned before meeting held - Authority not convinced M’s complaint and K’s behaviour motivating factor for applicant’s resignation - Evidence applicant signed employment agreement with new employer around same time resigned - Also applicant’s probationary period extended and applicant knew not performing - Authority concluded no breach of duty by respondent of sufficient seriousness that applicant’s resignation foreseeable - No unjustified dismissal - Chief Operating Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authority Officers IUOW Inc [1994] 1 ERNZ 168;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 1 NZLR 372;Bilkey v Imagepac Partners unreported Colgan J, 7 Oct 2002, AC 65/02;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20; [1997] 2 All ER 1 (CA);Mason v Health Waikato [1998] 1 ERNZ 84;McCosh v National Bank unreported Colgan J, 13 Sep 2004, AC 49/04;NZ Storeworkers etc IUOW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 8 |
| PDF File Link: | aa 42_09.pdf [pdf 39 KB] |