| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 445/09 |
| Hearing date | 13 May 2009 |
| Determination date | 10 December 2009 |
| Member | J Wilson |
| Location | Auckland |
| Parties | Spiller v JDR Patrick & Co Ltd t/a Fagan & Hannay |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed disadvantaged by misappropriation incident at work and unilateral variation of hours – Applicant removed small amount of scrap metal for own use – Applicant accused of theft in front of other employees – Applicant claimed respondent’s actions unjustified and caused stress – Applicant argued respondent failed to clarify outcome – Applicant claimed was advised by respondent intended to call meeting to issue written warning – Applicant told respondent did not consider matter serious enough to justify warning and apologised – Applicant argued respondent advised breached employment agreement and should take legal advice – Applicant claimed felt extremely stressed and anxious as a result of conversation – Respondent claimed decided not to issue warning when applicant apologised – Respondent did not dispute did not communicate this to applicant – Authority found only criticism of respondent was failure to convey to applicant no further action would be taken – Found respondent acted fairly and reasonably in circumstances – Found applicant suffered no disadvantage other than anxiety in waiting for decision – No unjustified disadvantage – Respondent reduced applicant’s hours – Applicant claimed respondent re-employed ex-employee and other staff working overtime – Respondent argued applicant did not have skills to do other available work – Respondent relied on wording of employment agreement in reducing hours – Found work shortage in areas in which applicant skilled – Found no consultation took place to reduce hours – Found applicant disadvantaged – REMEDIES – No contributory conduct – Found if proper consultation had occurred reduction in hours would merely be delayed – Found fair and reasonable employer would have provided period of 4 weeks for consultation and implementation – Found applicant suffered considerable stress and humiliation as direct result of reduction in income - $3,000 compensation appropriate – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant argued number of incidents culminated in constructive dismissal – Applicant claimed incidents involved snide and condescending comments made in front of others – Applicant claimed harassment became more frequent and aggressive – Applicant instructed to pass job onto apprentice because was too slow – Respondent argued took job off applicant because was urgent and apprentice could complete task quicker – Applicant resigned after being told off in front of a customer – Found applicant subject of particular scrutiny by respondent – Found incidents were not direct cause of resignation – No constructive dismissal – Sheet metal tradesperson |
| Result | Application granted (unjustified disadvantage)(unilateral reduction of hours) ; Reimbursement of lost wages (4 days wages) ; Compensation for humiliation etc ($3,000) ; Application dismissed (unjustified disadvantage)(misappropriation incident) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Auckland Electric Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 |
| Number of Pages | 13 |
| PDF File Link: | aa 445_09.pdf [pdf 50 KB] |