| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 187/09 |
| Hearing date | 19 Nov 2009 |
| Determination date | 27 November 2009 |
| Member | D Asher |
| Representation | M Williams ; G Bevan |
| Location | Wellington |
| Parties | Lambert v Hawkes Bay Today Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent breached duty to provide safe workplace making resignation reasonably foreseeable – Respondent argued all reasonable steps taken to monitor applicant’s return to work – Applicant diagnosed with depression and sought sick leave – Respondent provided with psychologist report advising respondent applicant needed to gradually increase hours and regularly review applicant’s progress – Upon applicant’s return, parties agreed to reduce applicant’s hours, relieve applicant from management duties and monitor progress – Return to work plan not in writing – Meetings with applicant held, however respondent did not record discussions – Applicant claimed regular meetings not held - Applicant’s company vehicle not returned to applicant as allocated to another employee while applicant on sick leave – Applicant advised respondent undertaking counselling with private psychologist - Respondent did not offer applicant Employee Assistance Programme (“EAP”) – Applicant claimed respondent unreasonably declined to reimburse applicant for counselling sessions – Applicant resigned stating “it is the best decision for me to recover” – Authority found although applicant’s return to work plan not in writing, respondent followed recommendations in psychologist report – Found parties agreed to reduce hours and regular meetings held – Found despite respondent not recording discussions, applicant did not raise concerns respondent may not be adhering to recommendations – Found applicant admitted appropriate for respondent to reallocate company vehicle while on sick leave – Found applicant did not protest loss of company vehicle as part of employment agreement – Found benefit discretionary and respondent did not deliberately deprive applicant benefit – Found respondent did not offer EAP because applicant wished to stay with private psychologist – Found respondent not obliged to compensate for past counselling sessions – Found applicant’s resignation letter showed resignation voluntary – Found no breach of duty – No disadvantage – No constructive dismissal – Manager/Supervisor |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Health and Safety in Employment Act 1992 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 |
| Number of Pages | 9 |
| PDF File Link: | wa 187_09.pdf [pdf 27 KB] |