| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 421/10 |
| Hearing date | 14 Jul 2010 |
| Determination date | 23 September 2010 |
| Member | K J Anderson |
| Representation | J Watson ; S Langton, R Tomkinson |
| Location | Auckland |
| Parties | Charlesworth v Tourism Holdings Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Fixed term employment – Constructive dismissal – Applicant claimed final written warning constituted unjustified disadvantage – Incident where applicant attempted to clock out after first bell rather than waiting until second bell signalling employees could clock out and go home – Applicant claimed grabbed by manager to physically prevent clocking out – Applicant submitted written complaint to respondent complaining “physical assault and verbal abuse” – Applicant also made complaint to Police, who did not take matter further – Respondent conducted investigation into incident – Manager argued applicant disobeyed lawful instruction not to clock out before second bell – Also argued applicant undermined manager’s authority in eyes of co-workers – Respondent informed applicant if manager’s allegations proven then dismissal without notice an outcome – Respondent provided applicant final written warning – Manager “counselled” by respondent not to touch any employee in the future – Concurrently respondent carrying out restructuring – Subsequently applicant tendered resignation before waiting to ascertain outcome of reorganisation – Respondent argued lenient in deciding not to dismiss applicant – Authority found respondent concluded actions of applicant could not been seen as serious misconduct warranting dismissal – However, final warning excessive disciplinary sanction given overall conflict in evidence and manager’s unwarranted action – Found fair and reasonable employer would have been entitled to issue written warning but not final written warning – Found unjustified action by respondent in issuing final warning – However, applicant’s employment not affected to disadvantage as applicant terminated employment with respondent – Found no unjustified disadvantage – Found last day of employment same day warning received – Found applicant never discussed concerns about proposed restructuring with respondent – Found applicant did not provide any feedback during consultation period – Found applicant made extremely hasty decision to resign from employment without discussing or considering options that may have emerged regarding continuity of employment – Found no evidence respondent decided to remove applicant through restructuring process – Found no constructive dismissal – Kanban-Manufacturing Support |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(b) |
| Cases Cited | Alliance Freezing Company (Southland) Ltd v NZ Amalgamated Engineering etc;IOUW [1989] 3 NZILR 785 ; [1990] 1 NZLR 533 ; (1989) ERNZ Sel Cas 575 (CA) |
| Number of Pages | 12 |
| PDF File Link: | aa 421_10.pdf [pdf 51 KB] |