| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 185A/09 |
| Hearing date | 3 Aug 2009 - 5 Aug 2009 (3 days) |
| Determination date | 02 November 2009 |
| Member | K J Anderson |
| Representation | K Nicolson ; S Langton |
| Location | Auckland |
| Parties | Burns v Media Design School Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant suspended then dismissed following investigation into performance concerns and conduct issues - Applicant claimed demotion from Faculty Director to Course Leader was unilateral variation to employment agreement causing unjustified disadvantage - Found applicant continued in role without loss of benefits - No unjustified disadvantage - Found applicant’s employment agreement allowed for suspension on pay - Found circumstances called for discussion with applicant before decision to suspend made - Found suspension without discussion of reasons unfair and unreasonable as rules of natural justice not complied with - Unjustified disadvantage - Remedies - Found suspension sudden and unexpected - Found while little direct evidence of hurt caused by suspension applicant humiliated by respondent’s actions generally so some of it must have related to suspension - $5,000 compensation appropriate - UNJUSTIFIED DISMISSAL – Respondent relied on number of grounds to justify dismissal - Respondent claimed applicant’s failure to follow instructions to provide curriculum put respondent at risk and justified dismissal - Found applicant evasive and unhelpful about providing curriculum - Found reasonable for respondent to infer delay in complying was to avoid assessment of quality and quantity of curriculum - Found unreasonable for respondent to change view of applicant storing course material at home – Respondent claimed applicant attempted to prevent respondent from accessing course development files on respondent’s computers by using password - Found reasonable for respondent to infer applicant shielding failure to have appropriate course material readily available - Found while applicant did not have permission or authority to delete student feedback was not breach of employment agreement to do so - Applicant failed to advise respondent of serious complaints made by students and only brought minor matters to attention - Found reasonable for respondent to conclude selective use of feedback demonstrated deliberate attempt to hide rather than disclose information critical of applicant - Found respondent conducted fair investigation - Found concerns put to applicant and representative for comment - Found combined deficiencies in applicant’s conduct and failure to acknowledge fault of such gravity respondent entitled to conclude situation irretrievable and dismissal on basis of loss of trust and confidence available option - Dismissal justified - BREACH OF CONTRACT - Applicant claimed several incidents, including taping meeting, breached employment agreement and hence s4 Employment Relations Act 2000 (“ERA”) - Found applicant’s claim respondent “lied and deceived” extreme allegation largely unsupported by evidence - Found no direct link between incidents and terms of applicant’s employment agreement - Found respondent’s behaviour in taping meeting and some other conduct less than ideal - However, found incidents separately or together did not constitute breach of any express or implied term of employment agreement or s4 ERA - Found even if wrong, statutory threshold for penalty under s4 ERA not reached - COUNTERCLAIM - Breach of contract - Respondent claimed applicant, by failing to carry out duties in manner expected of him, breached express, implied, and statutory terms of employment agreement - Respondent claimed losses of $62,325 - Found not all alleged breaches of employment agreement could be shown to have contributed to damages claimed - Found damages claimed too remote - Counterclaim declined - Faculty Director |
| Result | Applications dismissed (unjustified dismissal)(breach of contract)(unjustified disadvantage) ; Application granted (unjustified disadvantage - suspension) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s174(b) |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;Mahmud v Bank of Credit and Commerce International SA [1998] AC 20;Masonry Design Solutions Ltd v Bettany unreported, Colgan CJ, 21 Aug 2009, AC 30/09;New Zealand Airline Pilots Association Inc. and Anor v JetConnect Ltd and Ors [2009] ERNZ 207;Tawhiwhirangi v A-G in respect of the Chief Executive, Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 40 |
| PDF File Link: | aa 185a_09.pdf [pdf 118 KB] |