| Summary |
UNJUSTIFIED DISMISSAL – Constructive dismissal – Respondent’s director (“T”) reduced applicant’s wage from $22 to $20 per hour for failure to follow instructions – No opportunity for applicant to explain reason to T – T stood applicant down seemingly as result of applicant defending co-worker alleged to have stolen property – When applicant returned, T directed applicant to work at another site – Applicant challenged unilateral direction – T claimed employment agreement (“EA”) permitted T to make change, and sent applicant home – After various communications, T met with applicant and legal representative – T advised could only offer position at other site, for reasons could not explain, then left room – Applicant considered no trust or confidence in respondent and declined T’s offer – Applicant raised constructive dismissal grievance – Applicant discovered was three months pregnant – Applicant claimed left employment as result of breach of duty by respondent, being unilateral reductions to rate of pay, requirement to work on another site, and failure in obligation to be responsive and communicative - Authority rejected T’s argument EA was casual contract – Found had appearance and content of regular ongoing employment relationship - EA provided applicant “to work elsewhere from time to time when directed by company” – Authority found “from time to time” not synonymous with permanent relocation – Found respondent not entitled to unilaterally permanently relocate applicant to new site – Found no performance issues put to applicant and no disciplinary process applied – Found applicant fairly and reasonably concluded respondent’s direction to work elsewhere and failure to respond to applicant’s concerns repudiated applicant’s fundamental terms and conditions of employment – Applicant constructively dismissed – Dismissal unjustified - REMEDIES - Parental leave – Found if employment had continued, would have received paid parental leave – Applicant entitled to compensation for loss of benefit of 14 weeks parental leave – Authority found applicant immediately commenced searching for new employment but only found temporary and irregular employment - Found three months lost remuneration, less monies earned, appropriate - Found significant compensation award warranted because of entirely arbitrary nature of employment termination, length of service of ten years and uncontested evidence of impact dismissal had on applicant and family – $8,000 compensation appropriate - ARREARS OF WAGES - Hourly rate in EA $15.50 – Found applicant since promoted to foreman at rate of $22 – Found no evidence that promotion or hourly rate temporary, so both treated in context of ongoing employment relationship – Found respondent unilaterally reduced hourly rate of pay - Found in absence of agreement to reduction, applicant entitled to recover difference of $1,032 - ARREARS OF HOLIDAY PAY – Authority found no reason to reject applicant’s claim was unilaterally stood down or suspended, without consultation or disciplinary process permitting input into decision – Found suspension procedurally and substantively unjustified – Found applicant entitled to reimbursement of holiday pay wrongly deducted during two week suspension – Applicant also claimed did not receive final pay and owed annual leave - Respondent argued holiday pay paid on “pay as you go” basis – Applicant disputed arrangement – Authority found no written evidence to support arrangement was agreed by parties – Found EA contained standard leave and holiday arrangements - Foreman |
| Result |
Applications granted ; Arrears of wages ($2,838)(2 weeks) ; Arrears of wages ($1,032)(unilateral reduction in wage) ; Arrears of holiday pay ($3,173.84)(including wrongful deduction of holiday pay) ; Reimbursement of lost wages (3 months less other earnings)($10,880) ; Compensation for humiliation etc ($8,000) ; Loss of benefit (14 weeks paid parental leave entitlement)($5,703.32) ; Costs reserved |