| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 321/09 |
| Hearing date | 22 Jul 2009 |
| Determination date | 07 September 2009 |
| Member | D King |
| Representation | R Upton ; R Gee |
| Location | Auckland |
| Parties | Kavanagh v Ascot Aluminium Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed – Respondent argued applicant resigned – Authority found manager (“G”) had not formally raised concerns about applicant’s performance with applicant – Applicant told by G had made work error – Applicant claimed very tired as previous night took wife to hospital – Applicant told G “I may need to start looking for another job” – Applicant claimed despite comment no desire to leave employment – Applicant claimed contacted by respondent’s major shareholder (“H”) who wanted applicant to remain with respondent – H denied saying did not want applicant to resign, but to deal with G in future – Authority satisfied applicant told H not resigning – Applicant received letter from G stating resignation accepted – Applicant claimed had not resigned and was tired at time of conversation – G argued applicant did not say had not resigned – Authority accepted applicants evidence – Applicant received second email from G stating employment would end at end of month – Applicant reiterated had not resigned and sought clarification why employment ending – G argued applicant unable to carry out role without making mistakes and accepted resignation – Applicant placed on garden leave and commenced hand over of duties on basis would return to normal duties – Applicant met with G upon return from leave and claimed G did not provide details of new role purportedly available – Applicant claimed G wanted applicant to leave – Following meeting applicant contacted G seeking further information about new role – H replied best if applicant moved on with new career and reminded applicant had resigned – Applicant’s advocate wrote to H stating strong evidence applicant dismissed without cause and applicant had repeatedly confirmed no resignation – G replied, noting applicant had obtained adviser, and stating applicant’s salary ceased immediately, employment ceased due to resignation, and matter would not be discussed further – G rejected mediation offer – G advised employment terminated by own resignation and nothing to negotiate – Applicant notified G of grievance, claimed wages ceased before dismissal, and sought payment of notice period and 12 days leave deducted from leave balance during purported period of leave – G informed applicant deduction mistake and payment would be made by specified date – G also argued applicant made serious mistakes resulting in financial losses and banned from key sites – G argued applicant should have been dismissed earlier for mistakes – Applicant sought response from G after annual leave payment not made by specified date – G replied waiting until outcome of Authority determination before payment made – Applicant replied unlawful for respondent to withhold wages and was compounding distress – G alleged applicant secured employment with competitor and behaving unacceptably towards respondent’s customers – Applicant claimed found response very hurtful as had remained without income and was reason why urgently sought wages – G refused to pay applicant holiday pay despite being informed by Authority not wise to withhold payment – Authority found words uttered by applicant did not constitute clear and unambiguous resignation – Found did not make sense for applicant to resign as had no alternative employment, and family relied on income – Found no resignation and respondent’s insistence of resignation unjustified – Authority found respondent imposed month of garden leave upon applicant when no provision in employment agreement – Found “garden leave” in fact suspension without substantive justification or due process – Found G admitted dismissal direct result of applicant involving independent adviser – G asserted respondent no longer had obligation to be fair and co-operative – Found G’s action in dismissing applicant because advice and representation sought breached good faith – Found no substantive grounds justifying dismissal – Found no fair process followed – Found respondent followed no proper process to conclude poor performance by applicant – Dismissal unjustified – REMEDIES – Applicant claimed significant emotional and financial consequences of dismissal – Applicant claimed had to cancel insurances, sell numerous items to meet bill payments and bank charges, and forced to rely on family for groceries and assistance – Applicant 62 years old and claimed applied for 60 jobs since dismissal – Applicant claimed respondent knew applicant made commitment to attend son’s wedding and could no longer financially contribute – Claimed sleep patterns affected and had no desire to do projects and sport used to enjoy doing – Claimed had no clarity about why dismissed and felt badly let down by respondent – Claimed felt at lowest emotional point in life – Authority found $15,000 compensation appropriate – Found $12,040 reimbursement of lost wages – Found given applicant’s age and difficulty obtaining other employment, fair to consider award for loss of future earnings – Authority found applicant entitled to 9 months salary as loss of future earnings – Authority rejected applicant’s claim for loss of use of company vehicle as its removal did not constitute breach of EA – ARREARS OF HOLIDAY PAY – Authority found respondent had no intention of honouring assurances holiday pay would be paid – Authority found applicant entitled to 12 days’ holiday pay plus interest – PENALTY – Authority found respondent made conscious decision to ignore law – However, where claim for penalty not brought by labour inspector, no jurisdiction to award penalty – ARREARS OF WAGES – Authority ordered respondent to pay applicant 3 days wages with interest – PENALTY – Authority found respondent deliberately failed to pay applicant wages due – Authority ordered respondent pay $2000 penalty to Crown – Authority rejected applicant’s claims for other penalties – Sales executive |
| Result | Application granted ; Reimbursement of lost wages ($12,040) ; Compensation for humiliation etc ($15,000) ; Arrears of holiday pay (12 days) ; Interest (4.7%) ; Arrears of wages (3 days) ; Penalty ($2000)(Payable to crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s103A;ERA s134(2);Holidays Act 2003 s75;Holidays Act 2003 s76;Wages Protection Act 1983 s13 |
| Cases Cited | Boobyer v Good Health Wanganui unreported, Goddard CJ, 24 February 1994, WEC 3/94;Sadd v Iwi Transition Agency [1991] 1 ERNZ 438;NZPSA v Landcorp [1991] 1 ERNZ 741;Chicken and Food Distributors (1990) Ltd v Central Clerical Workers Union [1991] 1 ERNZ 502;Telecom New Zealand Limited v Nutter [2004] 1 ERNZ 315;Telecom South v Post Office Union [1992] 1 ERNZ 711;Prebble v Coastline FM Ltd [1992] 3 ERNZ 294;BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 16 ALR 363;Devonport Borough Council v Robbins [1979] 1 NZLR 1 (CA);Prudential Assurance Co Ltd v Rodrigues [1982] 2 NZLR 54 (CA) |
| Number of Pages | 22 |
| PDF File Link: | aa 321_09.pdf [pdf 83 KB] |