| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 229/10 |
| Hearing date | 4 May 2010 |
| Determination date | 17 May 2010 |
| Member | A Dumbleton |
| Representation | J Appleby ; G Pollak |
| Location | Auckland |
| Parties | Sydow v Noel & Anor |
| Other Parties | Executive Recruiters International Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant initially offered and accepted employment agreement (“EA”) with base salary - Second respondent unilaterally changed remuneration to be commission only - Over five months later applicant raised concerns about remuneration and sought to return to initial agreement - Applicant concerned commission only salary would not meet qualifying criteria for permanent residence - First respondent claimed assumed applicant accepted terms and therefore could continue to accept terms or resign - First respondent informed applicant if accepted terms would continue to support permanent residence application - Informed applicant if resigned would need to inform Department of Labour - Found not case where respondent gave applicant ultimatum of resigning or being dismissed - Found clear respondent wished to continue employment - Found respondent did no more than point out reality of employment relationship; that applicant could terminate employment if wished - Found respondent did not follow course of conduct with intention of forcing applicant to resign - Found respondent unilaterally varied applicant’s EA when altered remuneration terms - Found was serious breach of EA - Found not reasonably foreseeable applicant would resign because of breach - Found applicant affirmed breach through conduct - Applicant complained to one of second respondent’s directors (“L”) that unhappy with change - L advised applicant not to create issue and work to find solution - L did not pass on applicant’s concerns to first respondent as believed applicant had taken his advice - Applicant worked under altered terms without protest or objection for over five months - Applicant claimed feared application for permanent residence might be adversely affected and viewed first respondent as unapproachable - Found by not raising concerns applicant lost right to accept repudiation of terms by ending employment within reasonable period and invoking remedies available under Employment Relations Act 2000 - Found applicant resigned freely, although unhappily from employment - No constructive dismissal - Associate consultant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s134;ERA s137 |
| Cases Cited | NZ Amalgamated Engineering etc IUOW v Ritchies Transport Holdings Ltd [1991] 2 ERNZ 267 |
| Number of Pages | 9 |
| PDF File Link: | aa 229_10.pdf [pdf 27 KB] |