| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 11 |
| Hearing date | 18 Nov 2010 |
| Determination date | 28 January 2011 |
| Member | G J Wood |
| Representation | J Brown ; L Gilmore |
| Location | Wellington |
| Parties | Hutchinson v La Bella Italia Distributors Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably constructively dismissed – Claimed bullied and harassed by manager (“M”) resulting in unjustified disadvantage – Also claimed respondent did not adopt fair process dealing with disciplinary issues and unilaterally varied terms of employment without genuine reason – Significant conflict between applicant and M – Authority accepted evidence of respondent that applicant not picked on or bullied but new work regime implemented that applicant having difficulty with – Issues between applicant and M intensified – Subsequently applicant’s days of work reduced from five to three – Major confrontation occurred and applicant swore at M – Subsequently applicant’s days of work reduced to two days – Respondent denied trying to get rid of applicant and offered applicant work at another restaurant to make up for reduced hours – Authority accepted offer genuine and applicant did not respond to offer at time – Subsequently applicant decided would not be returning to work – Authority found applicant’s letter to respondent constituted notice of resignation with immediate effect, together with claim of constructive dismissal – Found applicant not forced to work in unsafe working environment for which responsibility lay with respondent – Found no bullying or harassment by respondent – Found respondent did not fail in duties to adopt due process regarding disciplinary issues – Found no breach of duty by respondent telling applicant of existence of cameras because of losses at bar – Found employment agreement did not guarantee minimum number of hours – Found respondent did not unilaterally vary agreement when reduced applicant’s hours – Found while not best to ask applicant if intended to resign, respondent did best to make clear to applicant attitude needed to change if working relationship to continue – Found while accepted applicant resigned because of perception of respondent, Authority, did not accept breaches of duty by respondent – Found no unjustified disadvantage – Found no constructive dismissal – RECOVERY OF MONIES – Found applicant gave no notice – Found wrong of respondent to deduct two full weeks pay from applicant’s holiday pay to the absence of notice given – Respondent ordered to pay applicant $589 – Waiter |
| Result | Applications dismissed (Dismissal)(Disadvantage) ; Application granted (Recovery of monies) ; Recovery of monies ($589.08) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;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 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Wellington_11.pdf [pdf 40 KB] |