| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 291/09 |
| Hearing date | 26 Mar 2009 |
| Determination date | 20 August 2009 |
| Member | V Campbell |
| Representation | D Jacobson ; D Gould |
| Location | Auckland |
| Parties | Fowler v Westpac New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent’s failure to return applicant to previous position after secondment breached statutory and good faith duties causing resignation – Respondent argued no breach as applicant offered opportunities to return to previous position – Applicant seconded to alternative position – Secondment agreement provided applicant would return to previous position after secondment – Applicant’s secondment ended early – Applicant’s job description for previous position changed without consultation – Applicant discovered another employee assigned to applicant’s previous position and portfolio – Applicant raised personal grievance and matters resolved by settlement agreement – Settlement provided applicant had option to return to previous role if no alternative position obtained – Three months later, respondent advised applicant to return to previous position – Applicant disputed position offered was previous position as job description changed and not reassigned previous portfolio – Applicant claimed respondent terminated previous position therefore entitled to redundancy compensation – Respondent advised applicant changes to job title and description insignificant therefore previous position remain materially unchanged – Applicant commenced work under offered role but discovered had no workspace – Applicant went on sick leave – Respondent assigned back to applicant previous position and portfolio in its entirety – Applicant declined offer and resigned – Authority found respondent arranged for applicant to return to previous position before secondment commenced – Found respondent attempted to offer back to applicant previous position after secondment – Found respondent took applicant’s concerns into account – Found respondent failed to consult applicant over changes to job description, however, failure did not breach good faith – Found changes to job description and title immaterial – Found no breach of employment agreement and settlement agreement – Found no redundancy as previous position not terminated for being surplus to respondent’s requirements – No constructive dismissal – Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A |
| 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) [1985] 1 NZLR 372;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 |
| Number of Pages | 16 |
| PDF File Link: | aa 291_09.pdf [pdf 49 KB] |