| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 426/09 |
| Hearing date | 4 Jun 2009 - 24 Nov 2009 ( 2 days) |
| Determination date | 30 November 2009 |
| Member | M Urlich |
| Representation | G Steele ; M Hope |
| Location | Auckland |
| Parties | Lawrence v European Specialists Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed constructively dismissed following series of unjustified written warnings – Respondent alleged theft amounting to serious misconduct – Employment relationship deteriorated – Applicant claimed respondent’s attitude rude – Respondent argued applicant’s performance poor and had bad attitude – Meeting held and parties agreed to hold weekly meetings to discuss employment matters – Applicant subsequently issued with series of verbal warnings – Applicant returned to work after annual leave - First written warning issued alleging theft amounting to serious misconduct – Warning provided parties to attend mediation and if mediation unsuccessful, instant dismissal could result - No supporting evidence disclosed to applicant - Applicant did not challenge allegation – Parties unsuccessfully attempted to resolve matter – Respondent did not complete investigation into allegation – Second written warning issued for failing to follow correct procedure and repeat of conduct could result in dismissal – Applicant resigned – Authority found parties failed to recognise in good faith legitimacy in other’s concerns and seek ways to accommodate those concerns – Found written warnings procedurally and substantively unjustified – Found verbal warnings statute barred by limitation period - Found theft allegation unfounded and respondent should have withdrawn theft warning – Found resignation not reasonably foreseeable as open for applicant to challenge written warnings – Found while respondent spoke bluntly to applicant, conduct not sufficiently egregious to make resignation readily foreseeable – Found applicant did not claim breaches of duty respondent failed to remedy – No constructive dismissal - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustified written warnings caused disadvantage - Found written warnings unjustified and put applicant’s employment in jeopardy – Found unreasonable for respondent to dispense with conflict resolution procedures in employment agreement to deal with matters – Unjustified disadvantage – REMEDIES – No contributory conduct – Lost wages award declined as not related to unjustified actions – Found $6,000 compensation for humiliation for first written warning and $2,000 for second warning appropriate – Manager |
| Result | Application granted (Unjustified disadvantage) ; Application dismissed (Unjustified dismissal) ; Compensation for humiliation etc ($6,000)(First written warning) ($2,000)(Second written warning) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(b);ERA s124 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authority Officers’ IUOW [1994] ERNZ 168;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 |
| Number of Pages | 8 |
| PDF File Link: | aa 426_09.pdf [pdf 24 KB] |