| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 76/10 |
| Hearing date | 29 Oct 2009 |
| Determination date | 26 March 2010 |
| Member | H Doyle |
| Representation | S Naughton ; B Boivin |
| Location | Queenstown |
| Parties | Instone v Queenstown Golf Club Inc |
| Summary | RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISADVANTAGE - Applicant given individual employment agreement (“EA”) containing probationary period - EA never signed - Applicant claimed believed EA not to be signed until end of probation period - Authority found EA contained applicant’s terms and conditions of employment - Found at end of probationary period applicant became permanent employee - Found fact EA unsigned did not affect finding - Respondent appointed new course superintendent (“X”) after applicant commenced employment - Authority found X did not know about unsigned EA - Applicant booked three weeks leave - Applicant advised would not be enough work available over winter months when returned from leave - Applicant claimed told to take all accrued leave and then be on unpaid leave - X claimed believed applicant’s employment would end and applicant would be paid all entitlements but was possibility of reengagement in a few months with some causal work in between - Found applicant unhappy with idea of taking unpaid leave and did not agree to it - Found applicant took three weeks leave believing would have some work on his return - Found evidence did not support finding parties mutually agreed to termination of permanent employment with possibility of future reengagement - Found no agreement for applicant to take unpaid leave - Found applicant’s employment suspended without applicant’s agreement - Found applicant did not raise unjustified disadvantage grievance about issues within 90 days - Found way to resolve employment relationship problem was to enforce EA for period of suspension - Found applicant entitled to recover wages for period should have been allowed to work, less earnings from other sources - Respondent to pay applicant $5,628 - Interest payable - Found applicant entitled to holiday pay as well - Applicant asked to attend meeting where presented with fixed term employment agreement with reduced hourly rate from previous EA - Dispute between parties as to whether applicant could obtain independent advice about agreement - Found applicant was advised could seek independent advice - Found applicant not specifically told agreement was fixed term but not satisfied deliberate attempt to deceive applicant - Found applicant did agree to variation of terms - However, found fixed term did not comply with requirements of Employment Relations Act 2000 (“ERA”) so respondent unable to rely on it without applicant’s agreement - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed following unsuccessful mediation to resolve issues about new employment agreement were several matters amounting to breaches of duty by respondent that caused his resignation - Found practical joke played on applicant, while in poor taste and occurring at bad time following unsuccessful mediation was not breach of respondent’s employment obligations - Found X did not encourage other employee’s to treat applicant differently following mediation - Found no breach of duty - Found letter given to applicant stating when employment to end subject to fixed term did not constitute breach of duty - Found also letter referred to future event and employee not entitled to point to employer’s possible future conduct as causative of resignation - Found no breaches of duty by respondent - No constructive dismissal - PENALTY - Applicant sought penalties for breaches of employment agreement and provisions of ERA - Found no deliberate lack of good faith by respondent to deprive applicant of terms and conditions of employment - Found was unfortunate set of circumstances that required careful analysis to resolve - Application for penalty declined - Assistant Green Keeper |
| Result | Application granted (arrears of wages)(holiday pay) ; Arrears of wages ($5,628) ; Holiday pay ($450.25) ; ($Interest (4%) ; Applications dismissed (unjustified dismissal)(raising personal grievance)(unjustified disadvantage)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s66(4);ERA s66(5);ERA Second Schedule cl11;Incorporated Societies Act 1908 |
| Cases Cited | Business Distributors Ltd v Patel [2001] ERNZ 124;Canterbury, Westland etc Clothing and Related Trades IUOW v Donna Rae Models Ltd [1982] ACJ 423;Electricity Corporation of NZ Ltd v NZ Public Service Assn Inc. (PSA) [1989] 1 NZILR 378;Journalists and Graphic Process Union v Western Litho Ltd [1991] 1 ERNZ 943 |
| Number of Pages | 20 |
| PDF File Link: | ca 76_10.pdf [pdf 60 KB] |