| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 327/09 |
| Hearing date | 24 Mar 2009 |
| Determination date | 10 September 2009 |
| Member | R Arthur |
| Representation | S Blackwell ; G Paul |
| Location | Auckland |
| Parties | Cheng v Base Projects Ltd (in liquidation) |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed – Respondent argued applicant sent home until ready to attend meeting to discuss employment issues – Respondent argued when applicant did not return to work in following days, treated absence as resignation – Applicant’s manager (“L”) emailed applicant to raise issue of applicant’s vehicle expenses – Series of email exchanges between applicant and L became heated and involved conflict – Applicant forwarded email chain and comment to friends at five external email addresses – L entered applicant’s open office area several times to discuss issues in person during exchange – Authority found L asked applicant three times to come into office but applicant said too busy – L told applicant that endangering employment and to go home to think about attitude – Applicant claimed L also advised applicant dismissed – On balance of probabilities, with evidence of witnesses in office, Authority found L did not refer to terminating contract – That afternoon, applicant emailed L regarding dismissal – L advised applicant not dismissed – Authority found applicant not dismissed – Found applicant chose not to attend disciplinary meeting and effectively abandoned employment, instead raising personal grievance two days after events – No unjustified dismissal - UNJUSTIFIED DISADVANTAGE – Authority found L sending applicant home was suspension – Found no provision for suspension in employment agreement (“EA”) – Found no issue of sufficient significance to justify applicant being removed from workplace while concerns investigated – Found L acted rashly in sending applicant home without reasonable discussion about arrangements - Found fair and reasonable employer would have first discussed prospect and terms of suspension – Found applicant entitled to more notice of disciplinary meeting and opportunity to arrange for representative – Found two unjustified actions – REMEDIES – Authority found award of $4,000 would be appropriate to compensate for distress at being told to leave office in front of co-workers – However, found 100 percent contributory conduct – Found applicant’s behaviour regarding vehicle expenses was breach of trust – Found applicant said was too busy to discuss L’s reasonable concerns, but actually emailing friends about “email war” with L – Found applicant’s emails and swearing towards L inflamed situation and in part provoked L’s rash response – Authority also took into account applicant’s subsequent conduct in sending emails to friends calling L “fu**wit” and making joke of situation – No remedies awarded due to applicant’s blameworthy conduct - BREACH OF CONTRACT - Counterclaim – Respondent argued applicant breached EA by using respondent’s time and resources to do work for personal clients and preparing to set up own business – Applicant denied allegations – Authority found not breach that applicant took steps to register company – Authority found insufficient evidence of other examples of alleged breaches – Found even if breaches established, were minor and no reliable evidence of losses to respondent – Found no orders necessary – Project manager |
| Result | Application dismissed (dismissal) ; Application granted (disadvantage) ; Application dismissed (counterclaim)(breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Singh v Sherildee Holdings Limited, unreported, Couch J, 22 September 2005, AC 53/05 |
| Number of Pages | 9 |
| PDF File Link: | aa 327_09.pdf [pdf 32 KB] |