| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 524/10 |
| Hearing date | 24 Nov 2010 |
| Determination date | 23 December 2010 |
| Member | E Robinson |
| Representation | Moxey (in person); Mr Mann |
| Location | Auckland |
| Parties | Moxey v Westminster Pacific (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent’s failure to pay agreed salary over two and half month period caused loss of trust and confidence in respondent – Respondent conceded failed to pay applicant salary, however, argued resignation result of applicant’s unwillingness to accept respondent’s salary assurances – Respondent also argued resignation result of applicant’s refusal to participate in performance management process – Applicant seconded by respondent to operating company of respondent (“S”) – Respondent argued reason respondent not recharging applicant’s salary to S in first year of employment was due to respondent’s expectation S would grow due to applicant’s involvement – Subsequently performance management process implemented on applicant – Subsequently applicant’s monthly salary not paid – Authority found respondent entitled to set applicant’s performance standards but fair and reasonable employer would have given clear objectives reviewable on regular basis – Found respondent offered applicant no help as to how objectives could be achieved – Found respondent did not act as fair and reasonable employer in performance management process – Found requirement to pay applicant in accordance with agreement clear contractual term – Found reasonably foreseeable there was substantial risk of applicant’s resignation if serious breach of contractual term relating to remuneration not remedied – Found respondent’s actions breached obligations to act as fair and reasonable employer, resulting in corresponding breakdown in trust and confidence between parties – Found applicant did not act unreasonably in refusing to accept assurances given by respondent as to payment of salary and arrears – Found respondent did not unreasonably refuse to participate in performance management process – Found applicant unjustifiably constructively dismissed – REMEDIES – Found no contributory conduct – Found $34,285 reimbursement of lost wages – Found $5,000 compensation appropriate – General Manager |
| Result | Application granted ; Reimbursement of lost wages ($34,285) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Trotter v Telecom [1993] 2 ERNZ 659 |
| Number of Pages | 13 |
| PDF File Link: | aa 524_10.pdf [pdf 52 KB] |