| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 376/10 |
| Hearing date | 28 Apr 2010 |
| Determination date | 23 August 2010 |
| Member | V Campbell |
| Representation | D Lane-Murphy (in person) ; D Law |
| Location | Auckland |
| Parties | Lane-Murphy v Newmarket Travel Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – BARGAINING – GOOD FAITH – UNJUSTIFIED DISMISSAL – Constructive dismissal - Applicant claimed constructively dismissed following serious breaches of statutory obligations and bullying by respondent’s manager (“X”) – Respondent argued no breach of obligations to constitute constructive dismissal – Applicant initially employed under fixed-term employment agreement (“EA”) with specified salary rate – Respondent subsequently restructured and offered applicant new permanent EA – EA provided lesser salary but with bonus scheme to reflect industry practice – Applicant and respondent’s director (“B”) entered in negotiations on salary level – Second draft of EA provided to applicant – Applicant accepted second EA to B’s surprise as applicant had been resistant to accepting new EA during negotiations – Applicant claimed had no option but to accept EA as being bullied by X - B argued no bullying by X and allegation never raised - Applicant subsequently resigned – Personal grievance – Authority found no breach of good faith when negotiating with applicant over new EA – Found claim respondent threatened to disestablished position if new EA not accepted unsupported – Found no unfair bargaining established under s68 Employment Relations Act 2000 (“ERA”) – Found B provided applicant opportunity to seek independent advice before negotiations begun – Found common ground applicant’s acceptance of EA unexpected – Found applicant may be unhappy with way negotiations conducted but unhappiness not evidence of duress – Found no breach of s63A ERA - Found applicant’s concerns responded to by increasing commission payment – Found applicant did not raise concerns about new EA until after its acceptance – Found applicant and X had personality clash – Found however, applicant never made complaint to B about X’s alleged bullying – Found B took steps to improve working relationship between X and applicant – Found in any event, X left employment before applicant resigned therefore alleged bullying did not cause resignation – Found no constructive or actual dismissal – Travel Consultant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63;ERA s63A;ERA s63A(2)(b);ERA s68;ERA s69;ERA s103A |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;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 | 8 |
| PDF File Link: | aa 376_10.pdf [pdf 30 KB] |