| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 58/09 |
| Hearing date | 3 Feb 2009 |
| Determination date | 08 May 2009 |
| Member | G J Wood |
| Representation | L Farser ; C Schurr, K Marinner |
| Location | New Plymouth |
| Parties | Blackbourn v CF Schurr Ltd |
| Summary | PRACTICE AND PROCEDURE - UNJUSTIFIED DISADVANTAGE – Whether variation of employment agreement (“EA”) enforceable, and if so whether respondent in breach – Background to dispute included issues of office temperature, applicant’s pregnancy and staff incompatibility – Applicant considered unfair that certain contract work offered to practice managers not applicant - Applicant abused practice managers in staff meeting and made formal complaint about them – Respondent and applicant agreed to vary applicant’s EA – Variation stated applicant take leave without pay until parental leave expired, then to resign and receive compensation payment – Respondent argued final agreement conditional on both parties signing agreement, with respondent having final right of veto – Respondent’s lawyer (“L”) drew up settlement agreement on basis all matters between parties resolved – Applicant signed agreement and sent to respondent - Respondent refused to sign agreement as received new information applicant allegedly falsified time sheets, came and went as pleased, divulged parts of settlement agreement and intended to poach respondent’s clients – L conducted disciplinary meeting regarding applicant’s time keeping and abusive comments to practice managers – L told applicant that was recommending applicant be dismissed – Applicant told L that respondent to “stick his job up his arse” and made further abusive comments – Respondent accepted L’s advice that applicant resigned – L advised applicant that respondent would have dismissed applicant anyway – Applicant raised grievance – Authority found applicant had no legitimate complaint over treatment over contract work – Authority did not accept applicant faced with ultimatum to agree to exit arrangement or be disciplined – Found applicant not unfairly pressured to reach settlement - Authority noted employment relationship problem may be settled or resolved through accord and satisfaction – When problem is settled or resolved by parties, Authority entitled to enforce agreed terms, rather than investigating an employment relationship problem, and determine remedies accordingly if necessary – Authority found parties had meeting of minds over variation to EA – Authority rejected respondent’s argument that had reserved right to withdraw from agreement – Authority found accord and satisfaction – Found applicant’s employment ended early and applicant particularly disadvantaged in way disciplinary process unfairly imposed despite agreement to leave – Disadvantage unjustified – Authority did not accept applicant breached agreement allowing respondent to cancel agreement – Found insufficient evidence applicant intended to poach clients - Found applicant would have been entitled to compete with respondent without breaching obligations to it after employment ended, as no restraint of trade clause - Found other matters relied on by respondent to cancel were known to it before agreement reached so could not constitute breach - REMEDIES – Applicant entitled to be paid compensation sum from agreement – Authority accepted applicant upset when forced to go to disciplinary meeting about historical issues when agreement had already been reached to leave employment voluntarily – Authority took into account applicant’s intemperate comments towards respondent’s officers - $3,000 compensation appropriate – Authority noted if it had been required to go beyond settlement agreement, would likely have found unjustified dismissal due to historical nature of allegations, limited opportunity for applicant to explain position in disciplinary meeting, inability to make submissions to decision maker and seizing of words not intended to constitute resignation - Office manager |
| Result | Applications granted (practice and procedure)(unjustified disadvantage) ; Compensation for humiliation etc ($3,000) ; Compliance with terms of settlement ($5,000) |
| Main Category | Practice & Procedure |
| Cases Cited | Birthright (Palmerston North) Inc v Maraki (unreported, Shaw J, WC 24/04, 17 Dec 2004);Boobyer v Good Health Wanganui (unreported, Goddard CJ, WC 3/94, 24 Feb 1994);Graham v Crestline Ltd [2006] ERNZ 848;Monteith v Hakansson (unreported, Shaw j, WC 5/08, 18 Mar 2008);Xu v McIntosh (unreported, Goddard CJ, WC 13A/04, 18 Nov 2004) |
| Number of Pages | 10 |
| PDF File Link: | wa 58_09.pdf [pdf 36 KB] |