| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 411/08 |
| Hearing date | 22 Jul 2008 - 24 Jul 2008 (3 days) |
| Determination date | 04 December 2008 |
| Member | P Cheyne |
| Representation | R Wilson (in person) ; D Malcolm |
| Location | Taupo |
| Parties | Wilson v Taupo Therapy Centre Inc |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal – Applicant claimed not provided with written employment agreement (“EA”), not advised of right to support person in meeting reviewing employment, bullied and psychologically abused, terms of employment changed and privacy breached – Respondent was incorporated society founded by “H” – Applicant engaged for two month probationary period – Respondent gave applicant written proposal – Authority found proposal met most of requirements of s65 Employment Relations Act 2000 (“ERA”) – Found EA’s informality and poor drafting did not overall constitute breach of ERA – Found respondent did not advise applicant that entitled to seek independent advice on EA – However, penalty not sought so matter not taken further – Applicant sought approval from H and financial administrator (“G”) that applicant’s employment also constitute fieldwork placement for applicant’s University qualification – Applicant claimed H ticked boxes and signed form – G and H claimed H signed form but did not tick boxes as required further discussion – Authority found signed, unticked copy of document represented what partied agreed – H called meeting due to concern over applicant’s behaviour during interview with reporter and at hui – Applicant not given opportunity for support or representation at meeting – H expressed dissatisfaction regarding applicant’s team fit, inappropriate remarks, teasing, personal presentation and eating disorder – H telephoned applicant’s former manager (“D”) to discuss suspected eating disorder and behaviour at hui – H scheduled meeting to review applicant’s performance as probationary period to expire – Parties unable to agree on performance review process – Employment continued past expiry of probationary period – Applicant sent complaint letter and raised personal grievance alleging bullying by H – H sent applicant email stating did not agree to University placement – Applicant resigned - Authority found no breach of obligation arose from informality of EA - Found applicant resigned because of perception that was bullied by H and had rights affected over course of employment – Found H breached obligation to treat applicant in fair and reasonable manner leading up to and during review meeting – Found H took behavioural incidents beyond reasonable direction about standards to a new employee – Found no basis for H’s conclusion that applicant not safe person to work with – Found H should not have told applicant after hui that had negative energy and no one liked her – Found H breached respondent’s obligations in discussion with D – Found consent given by applicant to speak to referees as part of job application did not extend to disclosing H’s concerns about applicant’s conduct during employment – Found respondent’s code of practice, including confidentiality obligation, applied to both parties – Authority did not accept that applicant’s further complaints about H’s conduct amounted to bullying, as H entitled to monitor applicant’s work closely – Found substantial risk of resignation foreseeable in light of seriousness of breaches - Found continuation of employment relationship was live issue at time due to probationary period and as H expressed uncertainty about applicant’s future employment – Reasonably foreseeable that communication such as email resiling from earlier commitment important to employee might result in resignation – Applicant unjustifiably constructively dismissed – REMEDIES – Found applicant falling asleep during hui was minorly blameworthy conduct – However, not appropriate to reduce remedies further based on applicant’s minor contribution as Authority already moderated compensation award to take account of respondent’s limited resources as incorporated society – Moderate compensation award appropriate - Child Advocate |
| Result | Application granted ; Compensation for humiliation etc ($6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Offiers’ IUOW Inc [1994] 1 ERNZ 168;Auckland etc Shop Employees’ etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 |
| Number of Pages | 14 |
| PDF File Link: | aa 411_08.pdf [pdf 54 KB] |