| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 371/09 |
| Hearing date | 1 Jul 2009 |
| Determination date | 23 October 2009 |
| Member | V Campbell |
| Representation | N Bolstad ; S Clews |
| Location | Tauranga |
| Parties | Tarawa v Wade & Anor t/a Body and Soul |
| Other Parties | Morgan |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent breached duty through unilateral reduction in days of work because of performance issues, unjustified criticisms of performance, blame for not expanding client base, unfair treatment while off work, failure to show concern regarding sick leave due to work related stress, unfair meeting, unreasonable timeframe for responses, failure to advise of right to representative during disciplinary process, and limited support person’s role at meeting – Applicant resigned following disciplinary meeting – Respondent argued applicant agreed to reduction in work hours during meeting – Authority found no unilateral reduction of work hours – Respondent asked applicant to take responsibility for cleaning store because unhappy with cleanliness – Found no disadvantage – Respondent raised concerns with applicant that was not expanding client base – Found no unfairness in raising issue with applicant – Applicant exhausted sick leave and respondent offered to pay annual leave for remainder of absence – Found no unfairness in communication – Respondent scheduled disciplinary meeting during period of absence – Found could lead to disadvantage but meeting not held until applicant returned to work – No evidence to support allegation of failure by respondent to show concern regarding applicant’s wellbeing – Found respondent provided opportunity for applicant to discuss matters in meeting and gave comprehensive feedback – Found inaccuracies in meeting notes corrected by respondent – No evidence to support allegation of unreasonable timeframes for responses – Respondent invited applicant to disciplinary meeting and stated support person should not take control of meeting and format – Authority satisfied essential elements of procedural fairness met – No disadvantage in employment – No breach of duty on part of respondent which made it reasonably foreseeable applicant would resign – No dismissal – Beauty therapist |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] ERNZ 168;Bilkey v Imagepac Partners unreported, Colgan J, 7 October 2002, AC 65/02;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 ; [1997] 2 All ER 1 (CA);Mason v Health Waikato [1998] ERNZ 84;McCosh v National Bank unreported, Colgan J, 13 September 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 12 |
| PDF File Link: | aa 371_09.pdf [pdf 382 KB] |