| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 217/09 |
| Hearing date | 23 Mar 2009 |
| Determination date | 02 July 2009 |
| Member | R A Monaghan |
| Representation | D James ; S Leftley |
| Location | Kerikeri |
| Parties | Peita Jnr v United Carriers Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal - Abandonment – Co-worker’s two motorbikes stolen – Applicant’s friend later admitted involvement – Applicant did not report to work following day – Several co-workers visited applicant at home to discuss theft - Applicant provided respondent with medical certificate stating unfit for work due to earlier injury – Applicant’s absence fuelled suspicions among co-workers that applicant involved in theft – On morning applicant to return to work, co-worker visited applicant’s home, shouted, swore and said applicant should resign – Applicant advised respondent felt unsafe to return to work because of threats – Further medical certificate provided – Conflict in evidence – Authority found likely respondent told applicant that co-workers wanted him to resign so applicant became very upset - Respondent suggested temporary transfer and sent applicant to new worksite – Manager at new worksite asked applicant to return hour later – Applicant frustrated and left – Authority found likely in phone call respondent agreed applicant “shafted” – Applicant raised dismissal grievance – Parties began discussions to resolve issues – Applicant did not report to work on planned date – Applicant denied respondent’s claims attempted to contact applicant several times – After one week of absence, respondent concluded abandonment – Applicant relied on grievance raised prior to discussions about return to work – Authority found was arguably open to applicant to treat employment at end on day applicant sent to new worksite – However, found applicant in fact considered employment uncertain but not at end – Found respondent accordingly correctly believed was addressing employment relationship problem and confirmed resignation not sought – Found suggestion of temporary change in worksite arguably in applicant’s best interests – Found respondent did not breach obligation to manage co-workers’ reactions in fair and reasonable way, and ensure they did not get out of hand and put applicant’s safety at risk - Found respondent attempted to address incompatibility issues with co-workers and took practical steps to ensure applicant’s safety at work – No constructive dismissal – UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent failed to provide safe place of work by failing to make real effort to obtain commitment from co-workers to withdraw threats – Authority rejected argument – No unjustified disadvantage – Discrimination – Applicant claimed discriminated against by reason of refusal to work under s28A Health and Safety in Employment Act 1992 – Authority found applicant refused transfer because considered it unfair, not because of safety – Also found grievance not previously raised – No discrimination - Driver |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s104;ERA s122;Health and Safety in Employment Act 1992 s28A |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 2 NZLR 414, [1994] 1 ERNZ 168;Auckland Shop Employees IUOW v Woolworths (NZ) Limited [1985] 2 NZLR 372;Canterbury Clothing & Related Trades IUOW v Caroline Goodman Fashions Ltd [1982] ACJ;121 |
| Number of Pages | 12 |
| PDF File Link: | aa 217_09.pdf [pdf 39 KB] |