| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 85/09 |
| Hearing date | 26 Feb 2009 - 26 Mar 2009 (2 days) |
| Determination date | 19 June 2009 |
| Member | P Montgomery |
| Representation | S Thomas ; M Ryan |
| Location | Nelson |
| Parties | Stewart v Industrial Services Nelson Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant given assurances respondent had working capital when accepted position - Respondent’s CEO unhappy with salary offered to applicant and proposed variation - Parties agreed to and signed variation - Applicant received new employment agreement which altered reporting line - Applicant did not sign document - Applicant resigned as respondent did not have working capital - Applicant persuaded not to resign and given assurances situation would improve - Situation did not improve and applicant resigned again - Applicant again persuaded not to resign and further undertakings given - Situations till did not improve and applicant accused of failing to invoice correctly - Applicant resigned and brought constructive dismissal claim - Authority found employment agreement signed by parties at outset of employment and signed variation governed relationship between parties - Found applicant misled as to respondent’s financial position - Found respondent breached its obligations to applicant - Found applicant justified in repudiating agreement - Found resignation foreseeable given failure to deliver on previous undertakings - Applicant constructively dismissed - Remedies - No contributory conduct - Applicant found new employment six weeks after resignation - $5,190 reimbursement of lost wages awarded - Reimbursement of loss of benefit of fuel allowance awarded - Interest awarded - Found while employment of only three and half months applicant’s stress and hurt heightened by respondent’s behaviour - $8,000 compensation appropriate - PENALTY - Applicant sought penalties for respondent’s failure to pay salary correctly, breaching implied terms of fair dealing, not providing safe workplace, and for failure to comply with good faith obligations when negotiating variation to employment agreement - Found respondent’s behaviour below standard required - $2,000 penalty appropriate - COSTS - Applicant sought full costs and disbursements - Respondent claimed costs should be dealt with by memoranda - Authority found given risk to applicant if respondent’s business failed costs to be determined at time - Found full costs not appropriate but award higher than under tariff approach warranted - Respondent to pay applicant $ 3,443, being 60 percent of reasonably incurred costs, and full disbursements - Office administrator |
| Result | Application granted ; Reimbursement of lost wages ($5,190) ;Loss of benefit ($288)(Fuel allowance) ; Interest (4.5%) ; Compensation for humiliation etc ($8,000) ; Penalty ($2,000)(Payable to Crown) ; Costs in favour of applicant ($3,443.25) ; Disbursements in favour of applicant ($120) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4A;Fair Trading Act 1986 s12;Fair Trading Act 1986 s43(2)(d) |
| Number of Pages | 12 |
| PDF File Link: | ca 85_09.pdf [pdf 37 KB] |