| Summary |
BREACH OF CONTRACT - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant briefly employed as pilot for respondent – During training period, applicant worked 17 overnights out of 51 days flying – Applicant inquired number of overnights anticipated after training period completed and concluded would continue at same level – Applicant resigned – Applicant claimed respondent failed to honour undertaking thereby breaching individual employment agreement (“IEA”) - Also claimed breach resulted in constructive dismissal – Respondent argued no such undertaking – Applicant claimed asked “K” in interview how many overnights would work – Claimed K advised 2 to 3 overnights per 28 day roster period – K claimed replied standard answer that K himself had 3 or 4 per roster period, but overnights greater during training period – Further employee of respondent (“A”) not involved in interviewing advised 2 to 3 per roster period – IEA stated hours of work variable and at respondent’s discretion – IEA stated IEA and letter of offer comprised complete terms of agreement and superseded earlier representations – Authority accepted respondent’s submissions that K’s answer only indicative and related to own work, respondent had no way of knowing of emphasis applicant placed on K’s answer before IEA entered into, K’s comments superseded by letter of offer and IEA which emphasised variable work hours, and IEA specifically stated terms of employment only as set out in IEA and letter of offer – Authority found no binding undertaking of 2 to 3 overnights per roster period – Authority noted provisions of IEA did not give respondent unfettered discretion to deploy applicant at will, so considered whether respondent reasonably exercised discretion regarding overnights – Applicant worked 6 overnights in each of first two roster periods – Applicant resigned after 5 of 8 rostered overnights in third roster, during which training period to finish – Applicant asked A if overnights to decrease, and claimed A advised staffing levels not expected to improve for six months – Respondent argued overnights would have decreased after training period – Authority found rosters during training reasonable – Found eight overnights in one roster more than expected, but applicant premature in assuming pattern would be regular – Found number of overnights not unreasonable nor breach of duty – For completeness, Authority considered whether overnights critical in decision to resign – Resignation letter focussed on performance concerns – Authority found four consecutive overnights factor in resignation – However, found reason for resignation was performance at progress check – No breach of contract and no unjustified dismissal – RAISING PERSONAL GRIEVANCE – For completeness, Authority considered respondent’s argument that grievance barred as not brought within 90 days – Authority found that letter applicant claimed to have raised grievance in made it clear applicant did not consider employment ended – Found letter did not raise grievance, and certainly not constructive dismissal grievance – Found grievance raised in later letter outside 90 day time limit – Grievance raised out of time - Pilot |