| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 333/10 |
| Hearing date | 23 Mar 2010 - 26 Mar 2010 |
| Determination date | 23 July 2010 |
| Member | V Campbell |
| Representation | D Hayes ; R Dekel |
| Location | Auckland |
| Parties | Coventry v Digi Poll Ltd |
| Summary | PRACTICE AND PROCEDURE – Whether applicant permanent employee – Applicant claimed permanent employee as employment relationship continued after expiry of first fixed term employment agreement (“EA”) – Respondent argued applicant under fixed term EA at all material times – Employment relationship not terminated after first EA expired – New fixed term EA offered three months after expiry of first EA - Applicant declined offer – Respondent later advised employment relationship terminated relying on expiry of first fixed term – Authority found fixed term EA must be in writing pursuant to s66 Employment Relations Act 2000 (“ERA”) – Found because employment not terminated after first EA expired, respondent could not subsequently rely on expiry of fixed term to terminate employment - Found applicant permanent employee - UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s breach of health and safety obligations caused disadvantage – Respondent claimed no breach of obligations – Applicant suffered pain allegedly due to work conditions – Medical report confirmed pain caused by work and non-work related stressors – ACC declined to cover applicant’s absences due to determination pain not result of work related gradual process injury – Respondent allowed applicant to move to new desk and change work rooms upon request - Respondent encouraged employees to take breaks and stretch – Respondent advised applicant would provide unpaid breaks for medical reasons - Department of Labour Health and Safety Inspector concluded workstations acceptable – Authority found no breach of health and safety obligations by respondent – Found respondent adequately responded to applicant’s complaints – Found evidence showed applicant’s pain not solely due to work conditions – Found no disadvantage – Applicant claimed verbal warning unjustified – Respondent issued applicant verbal warning following disciplinary meeting – Warning related to applicant chatting in work hours – Warning affected payment of bonus – Authority found warning caused disadvantage however justified – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed constructively dismissed following respondent’s “dismissive” attitude towards applicant’s health concerns – Applicant claimed two supervisors declined request to contact doctor when in pain – Respondent argued first supervisor interrupted by call before responding to request – Argued second supervisor suggested applicant use personal cell phone – Authority found no evidence respondent breached obligations – Found further, no evidence applicant resigned – No constructive dismissal – Authority resolved employment relationship problem as actual dismissal claim pursuant to s160(3) ERA – Found respondent actually dismissed applicant by relying on expiry of fixed term EA when applicant permanent employee – Found dismissal unjustified – REMEDIES – No contributory conduct – Reimbursement of $7,492.16 13 weeks lost wages - $3,000 compensation appropriate – Telephone Interviewer |
| Result | Application granted (Unjustified dismissal) ; Application dismissed (Unjustified disadvantage) ; Reimbursement of lost wages ($7,492.16) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s103A;ERA s124;ERA s160(3) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168;Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 ; [1997] 3 All ER 1 (CA);Mason v Health Waikato Ltd [1998] 1 ERNZ 84;McCosh v National Bank of New Zealand Limited unreported, Colgan J, 13 September 2004, AC 49/04;NZ Storeworkers etc IUOW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 10 |
| PDF File Link: | aa 333_10.pdf [pdf 43 KB] |