| Summary |
UNJUSTIFIED DISMISSAL – Constructive dismissal - No appearance for respondent – Applicant claimed respondent failed to provide healthy and safe workplace, and was subjected to abusive language and physical assaults by co-worker (“B”) – Applicant claimed respondent aware of matters but took no action, so applicant forced to resign – B was son of respondent’s co-directors (“D” and “T”) – Applicant’s parents friends with D and T - Applicant claimed B began harassing applicant through verbal abuse, derogatory comments about applicant’s girlfriend and family, swearing and assaulting applicant – Applicant claimed B’s behaviour became worse and D ignored complaints – Applicant claimed B shoved applicant into shelving during delivery, and told client applicant was thief – Applicant claimed D told applicant to grow up and get over it – B text messaged applicant saying was going to damage applicant’s car and parents’ house – B facing criminal charges for attacking car with baseball bat – Applicant told parents who told T – Respondent required B to apologise to applicant’s parents - Applicant claimed B said wanted applicant to resign so uncle could have job – B spat in applicant’s face – Applicant complained to D, who told applicant wipe it off and get on with it, and if did not like it could get new job – D witnessed B spitting on applicant second time, and immediately told B no longer had job – However, B continued working and D took no action – Applicant claimed became stressed by bullying and D’s siding with B – Claimed experienced severe headaches and eczema – Applicant’s doctor gave applicant medical certificate stating applicant unwell for work and prescribed anti-depressants – Applicant resigned and raised grievance – Authority found respondent breached s4 Employment Relations Act 2000 by not being active and constructive in establishing and maintaining productive employment relationship, and failing to be responsive and communicative – Found despite inviting applicant to raise concerns, D dismissed applicant’s allegations without investigating – Found respondent did not reply to concerns and grievance in letter of resignation – Found respondent assured in Statement in Reply that would investigate complaints, but no evidence of any investigation or further communication seeking information from applicant – Found respondent breached contractual obligations in written employment agreement – Found no reason to doubt applicant’s allegations of sustained bullying, verbal abuse, physical assault and spitting, nor reason to doubt applicant raised issues with respondent who did nothing – Authority accepted applicant’s assessment at time that respondent made clear would not take sufficient steps to protect applicant and family and was urging applicant to resign – Found resignation foreseeable – Found by its actions and words, respondent set out to deliberately force resignation – Found was both course of conduct with deliberate and dominant purpose of coercing employee to resign, and breach of duty by employer causing resignation – Dismissal unjustified – REMEDIES – No contributory conduct – Applicant spent two months following dismissal as unpaid courier driver in training, then began paid employment – Authority found proper effort to mitigate losses – Found applicant entitled to two months’ lost wages – Found applicant employed by family friends and victimised by their son, causing acute stress – Found applicant appalled when found respondent’s assurances meaningless – Found compelling evidence of extent of distress, frustration and depression, and extended to medical evidence – Found feelings worsened by respondent’s cynical adjournment of mediation and T’s negative reference check advice - $10,000 compensation appropriate – Considering circumstances and bad faith finding, applicant entitled to $80 for medical costs and $672 for wages lost as result of mediations, actual and aborted, and investigation meeting - ARREARS OF HOLIDAY PAY – Arrears since paid to applicant – Authority found applicant entitled to interest at 6 percent on paid arrears sum, running from end of notice period until date paid - Driver/driver assistant |