| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 412/09 |
| Hearing date | 5 Aug 2009 |
| Determination date | 18 November 2009 |
| Member | J Wilson |
| Representation | D Feist ; D Bain |
| Location | Auckland |
| Parties | Kevey v Inspire Enterprises Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unilateral change of employment agreement (“EA”) and respondent’s refusal to discuss employment concerns made resignation reasonably foreseeable – Applicant advised by respondent’s directors (“D”) considering employing new general manager to alleviate D from daily business operations – However applicant discovered new manager (“H”) already employed when assertion made – Applicant claimed D “lied” – D assured applicant duties and work hours would not change – Applicant claimed H unilaterally increased applicant’s work hours and suggested applicant sign new EA or resign – Applicant claimed H stated applicant’s performance poor and was being overpaid – H subsequently sought applicant’s acceptance of new EA for position as senior caf� assistant – H argued new EA due to applicant advising H would not work extra hours without additional pay to salary – Argued had to change applicant’s position to pay applicant hourly rate instead of salary – Argued new EA alternative to current position – Applicant’s duties and hours continued to change and applicant unsuccessfully sought to resolve matters with H – Applicant unsuccessfully attempted to arrange meetings with D – Further changes to applicant’s roster made – Applicant resigned – Authority found D had no intention of altering applicant’s EA and employed H to reduce their involvement in daily business operation – Found D deliberately misled applicant by not disclosing had already employed H – Found H admitted told applicant performance poor and business better off if applicant resigned – Found while D did not intend H to coerce applicant to resign, H coerced resignation – Found D deflected applicant’s attempts to discuss matters – Found applicant may not have been explicit about matters to D, however, D gave no priority to applicant even when approached by applicant’s representative – Dismissal unjustified – REMEDIES – Found applicant’s lack of assertiveness did not contribute to situation – Reimbursement of one month lost wages calculated as difference between old position and new position – Found applicant suffered anxiety therefore $6,000 compensation appropriate - UNJUSTIFIED DISADVANTAGE – Applicant claimed suffered unjustified disadvantage as applicant downgraded by H’s employment – Authority found no evidence D intended to downgrade applicant – Found H’s employment to relieve D from running daily business operations – No disadvantage – PENALTY – Applicant sought penalty for unilateral change of EA – Authority found penalty not warranted as H’s employment did not unilaterally alter applicant’s EA – Penalty declined – Caf� Manager |
| Result | Application granted (Unjustified dismissal) ; Application dismissed (Unjustified disadvantage) (Penalty) ; Reimbursement of lost wages ($3,992) ; Compensation for humiliation etc ($6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124 |
| Cases Cited | Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 |
| Number of Pages | 8 |
| PDF File Link: | aa 412_09.pdf [pdf 30 KB] |