| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 212/09 |
| Hearing date | 31 Mar 2009 |
| Determination date | 29 June 2009 |
| Member | V Campbell |
| Representation | A Taylor ; B Lawson |
| Location | Rotorua |
| Parties | Gibson v Nirvana Coaches Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s breach of good faith caused unjustified disadvantage – Respondent claimed reasonable actions taken – Applicant claimed harassed by co-worker (“W”) when gave W instructions – Applicant complained to respondent requesting meeting with W – Respondent believed meeting would exacerbate matters therefore dealt with W privately – Authority found respondent acted reasonably – Applicant claimed respondent failed to respond to second harassment and bullying incidents from member of public (“C”) – Several incidents occurred between applicant and C which lead parties to make complaints about one another – Respondent provided applicant copies of complaints and gave opportunity for explanations – Respondent suggested and applicant agreed to change bus timetable to avoid contact with C – Found respondent’s actions dealt fairly with parties’ complaints – Applicant claimed respondent encouraged C to take video footage of applicant with intention of using footage for disciplinary process – Found respondent admitted to notifying C Land Transport NZ would not take action against applicant without footage – Found “poor judgement” by respondent however no malicious intent therefore no unjustified disadvantage – Applicant claimed respondent made derogatory comments and falsely alleged medical certificate forged – Found claims not established – Applicant claimed respondent continuously contacted applicant about irrelevant matters – Found respondent’s enquiries about applicant’s health reasonable – Applicant claimed respondent failed to cooperate with ACC to ensure applicant’s income not affected – Found claim not established – Applicant claimed suspended for misconduct without notice – Employment agreement (“EA”) allowed suspension for “serious misconduct” – Found suspension inconsistent with EA and proper procedures not followed – Disadvantage unjustified – REMEDIES – No contributory conduct – No reimbursement of lost wages - Found suspension during sick leave covered by ACC – Found compensation of $1,500 appropriate - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent’s breach of good faith obligations made resignation reasonably foreseeable – Authority found no breach of obligations – Found resignation not foreseeable because applicant resigned before sick leave ended – No dismissal – ARREARS OF HOLIDAY PAY – Authority ordered respondent to pay applicant arrears of holiday pay of $68 – Interest payable - Bus Driver |
| Result | Applications granted (Unjustified disadvantage – Suspension) (Arrears of holiday pay) ; Applications dismissed (Unjustified disadvantage – Breach of good faith) (Unjustified dismissal) ; Compensation for humiliation etc ($1,500) ; Arrears of holiday pay ($68.69) ; Interest (4%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s160(3) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW (Inc) [1994] 1 ERNZ 168;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Bilkey v Imagepac Partners, unreported, Colgan J, 7 Oct 2002, AC 65/02;Malik v Bank of Credit and Commerce International SA (in liquidation) [1997] 3 All ER 1;Mason v Health Waikato [1998] 1 ERNZ 84;McCosh v National Bank of New Zealand, unreported, Colgan J, 13 Sept 2004, AC 49/04;New Zealand Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 16 |
| PDF File Link: | aa 212_09.pdf [pdf 58 KB] |