| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 173/10 |
| Hearing date | 14 Jun 2010 |
| Determination date | 01 September 2010 |
| Member | J Crichton |
| Representation | K Tohill ; K Smith |
| Location | Queenstown |
| Parties | McKnight v Byrnecut Mining (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Abandonment - Applicant claimed unjustifiably dismissed - Respondent claimed applicant abandoned employment - Applicant discovered someone had been printing her private emails - Applicant distressed by this as considered may have been someone within respondent collecting information about her - Applicant went home sick - Applicant rang Safety Superintendent (“R”) of Oceana Gold Ltd (“Oceana”) who owned mine - R advised applicant stay at home pending further contact - Applicant’s manager (“H”) unsuccessfully attempted to contact applicant - Applicant did not contact respondent - Respondent sent applicant letter confirming applicant abandoned employment pursuant to employment agreement (“EA”) and employment relationship at end - Applicant initiated personal grievance - Authority found EA provided if employee absent from work for three consecutive working days without notifying respondent and respondent’s reasonable efforts to contact applicant unsuccessful employment automatically terminated - Found clear respondent applicant’s employer and no reporting relationship or contractual link between applicant and Oceana - Found applicant absent for three consecutive working days - Found applicant did not notify respondent of absence - Found applicant knew or ought to have known respondent trying to contact her - Found applicant’s refusal to call H wilful - Found respondent made reasonable attempts to contact applicant - Found letter to applicant not dismissal rather record of fact employment ended by operation of EA - Applicant claimed respondent had duty of good faith to applicant and breached duty because knew applicant had not abandoned employment, knew applicant granted indulgences by R, and ought to have reopened employment relationship after abandonment period - Authority found not clear respondent knew applicant had not abandoned employment - Found applicant had not contacted respondent - Found applicant’s personal effects removed from office and work mobile phone left at office - Found reasonable for respondent to conclude applicant’s actions consistent with person intending to abandon employment - Found two days before applicant abandoned employment had been reminded of obligations to inform respondent of whereabouts - Found respondent knew, and applicant ought to have known, R had no authority to grant applicant leave - Found no duty on employer to revisit end of employment - Found if had been any breaches of good faith had been by applicant - Found applicant chose to rely on third party who she knew was not her employer to engage with her employer to sort issues out - Found employee must act on own behalf with own employer in order to fulfil obligations - Found no personal grievance - Occupational Health and Safety Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Brown v Five Star Pork (NZ) Ltd & Anor unreported, R Arthur, 23 Jun 2008, AA 216/08;Pitolua v Auckland City Council Municipal Abattoir and Auckland & Tomoana Freezing Works etc IUOW [1992] 1 ERNZ 693 ; [1992] 1 NZLR 6 |
| Number of Pages | 8 |
| PDF File Link: | ca 173_10.pdf [pdf 30 KB] |