| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 75/09 |
| Hearing date | 25 Aug 2008 - 10 Oct 2008 (3 days) |
| Determination date | 10 March 2009 |
| Member | R A Monaghan |
| Representation | P Weston ; M Edwards, M Salmen |
| Location | Auckland |
| Parties | Hamon v Coromandel Independent Living Trust |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Abandonment - Applicant claimed constructively dismissed following disagreement between parties regarding applicant’s role – Applicant alternatively claimed misrepresentation inducing employment agreement (“EA”) – Applicant co-trustee of Wahine Ora (“WO”) – WO and respondent submitted joint-application for funding for Adult Education project – WO and respondent formed “partnership” for purpose of progressing project – Applicant claimed legal “partnership” formed therefore funds and programmes jointly managed and owned – Respondent held recruitment process for position of project coordinator which applicant applied for – Respondent offered and applicant accepted position of project coordinator – EA defined applicant’s role and hours of work – Applicant did not sign EA believing conflict of interest clause required applicant to stop working for WO – Meetings held to resolve conflict of interest issues – Parties agreed to clause inserted in EA establishing applicant trustee of WO and joint party to funding – Further meetings held to address conflict of interest – Letter requested applicant to identify conflict of interests – Disciplinary meeting held regarding applicant carrying out activities for other organisations during work hours – No written warning issued – Applicant accused respondent of stealing document – Respondent responded to accusation and conflict of interest problems with offer to negotiate settlement – Applicant claimed offer repudiated EA – Applicant took leave and did not return – Respondent sent letter asking whether employment abandoned and requested meeting – Personal grievance raised – Authority found no constructive dismissal – Found no misrepresentation of employment relationship – Found respondent used “partnership” loosely to mean “sharing” or “associating” and not the legal definition which applicant sought to attribute to it – Found respondent’s imprecise use of “partnership” not breach of good faith - Found new clause in EA not establish legal partnership but confirmed parties jointly applied for funding – Found applicant employed as coordinator under EA and obligated to perform all duties in EA – Found applicant probably left document in meeting room therefore no theft - Found respondent’s conduct fair and reasonable – Found “settlement offer” not repudiation of EA but reflected respondent’s desire for negotiated resolution – Found respondent’s conclusion of abandonment reasonable – Found insufficient evidence to support applicant’s further claims of harassment, disadvantage and breach of good faith – No dismissal – PENALTY – Found penalty sought by applicant not properly established – Penalty sought against “N” declined as N not party to employment relationship problem - Authority noted the unnecessary accusations made between parties - Project Coordinator |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Limited [1985] 2 NZLR 372;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Worker Inc [1994] 2 NZLR 415;Bayliss Sharr and Hanson v McDonald [2006] ERNZ 1058 |
| Number of Pages | 25 |
| PDF File Link: | aa 75_09.pdf [pdf 73 KB] |