| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 230/10 |
| Hearing date | 22 Sep 2009 - 21 Oct 2009 (3 days) |
| Determination date | 17 May 2010 |
| Member | A Dumbleton |
| Representation | J Gyenge ; C Harris |
| Location | Auckland |
| Parties | Gyenge v Clifford Lamar Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent’s breach of duty sufficiently serious to make resignation reasonably foreseeable – Respondent argued applicant voluntarily resigned – Argued invoice for reimbursement of training costs “catalyst” for personal grievance – Employment agreement (“EA”) provided for applicant to reimburse respondent training costs if employment terminated within six month period – Applicant made repeated leave requests – Respondent declined leave advising applicant needed during requested period to ensure business functioned – Applicant resigned claiming leave request poorly handled, problems relating to breaks, communication, and respondent’s management – Respondent accepted resignation and invoiced applicant training costs – Personal grievance raised – Authority found respondent’s failure to accept leave request at worst “inconsiderate” but was not serious breach of duty – Found applicant knew reason for decline – Found EA provided timing of leave matter for parties to agree upon – Found respondent did not unreasonably withhold consent – Found respondent encouraged applicant to take breaks – Found respondent entitled to decide how business managed as long as employment obligations met – Found respondent complied with training obligations under EA – Found no evidence respondent treated applicant with indifference – No dismissal – COUNTERCLAIM – Recovery of monies – Respondent sought recovery of training costs pursuant to EA - Applicant claimed signed EA under duress – Authority found no evidence of duress – Applicant ordered to reimburse respondent $5069 for training costs – COSTS – No order for costs as parties self represented - Authority reported respondent deliberately made and maintained false statement during investigation - Respondent falsely alleged in statement of problem and investigation meeting applicant’s father made abusive racist comments - Respondent failed to facilitate Authority’s investigation - Technician/Apprentice Hairdresser |
| Result | Application granted (Counterclaim – Recovery of monies) ; Application dismissed (Unjustified dismissal) ; Recovery of monies ($5,069.24)(Training costs) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s181 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 |
| Number of Pages | 10 |
| PDF File Link: | aa 230_10.pdf [pdf 31 KB] |