| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 13 |
| Hearing date | 28 Jul 2010 |
| Determination date | 26 January 2011 |
| Member | M B Loftus |
| Representation | D Lloyd ; P Zwart |
| Location | Queenstown |
| Parties | Court v Loose Ends Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed resignation was constructive dismissal caused by unilateral reduction in pay rate, unwarranted criticism, and unilateral variation of terms of employment - Three days into employment respondent reduced agreed pay rate as concerned about applicant’s skill level – Applicant claimed respondent questioned her colour decisions and commented on abilities in front of customers – Applicant failed to sign and return copy of employment agreement (“EA”) – Respondent found EA no longer suitable so drafted new agreement – Applicant given copy of new agreement and old EA torn up - Respondent claimed applicant agreed to pay reduction, criticism warranted, and applicant given opportunity to discuss new agreement - Authority noted were significant factual differences in parties’ evidence - Authority reached conclusions on basis of uncontested evidence and without recourse to credibility findings - Authority found no dispute applicant’s pay rate reduced on third day of employment – Found reduction unilaterally imposed by respondent - Found insertion of trial period clause into new employment agreement disadvantageous to applicant – Found placed applicant in position not been in previously of being able to be dismissed at will - Authority found both changes significant enough to constitute breach of duty sufficient to cause resignation - Found original EA contained detailed performance management provisions – Found even though applicant did not sign EA parties’ conduct confirmed intended to be bound - Found respondent did not follow provisions - Found applicant’s resignation was constructive dismissal - Remedies – No contributory conduct - Authority not satisfied applicant’s performance as poor as suggested – Found even if was respondent chose to take applicant’s curriculum vitae at face value and failed to perform reference checks – Found respondent’s failure to address performance concerns with required procedure meant no contemporaneous evidence to base finding of contribution - Applicant sought reimbursement of lost wages from resignation until employed in current position less amount earned from unemployment benefit and another job – Applicant had found alternative employment three weeks after resignation but offer of permanent employment subsequently withdrawn – Applicant claimed respondent played part in withdrawal – Authority found insufficient evidence to support applicant’s claim therefore applicant’s wage claimed ended at point began new employment – Found three weeks’ wages exceeded amount sought by applicant – Found amount should not be reduced by amount of benefit received as applicant could reimburse Ministry of Social Development - Found applicant provided little direct evidence in support of claim for compensation, though witnesses did – However, uncontested evidence applicant so hurt by dismissal no longer working as hairdresser - $8,000 compensation appropriate - COUNTERCLAIM – Penalty – Respondent claimed applicant misled it as to her skills, that such conduct was deceptive, and penalty warranted – Found as had determined applicant’s performance not as poor as claimed respondent had failed to make case for penalty - Counterclaim dismissed - Hairdresser |
| Result | Application granted ; Reimbursement of lost wages ($1,782) ; Compensation for humiliation etc ($8,000) ; Counterclaim dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland & Gisborne Amalgamated Society of Shop Employees and Related Trades etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 ; [1985] 2 NZLR 372 ; (1985) ERNZ Sel Cas 136;Gorrie Fuel (SI) Ltd v Gittoes unreported, Couch J, 8 Nov 2007, CC 21/07 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Christchurch_13.pdf [pdf 44 KB] |