| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 501/10 |
| Hearing date | 12 Oct 2010 |
| Determination date | 30 November 2010 |
| Member | E Robinson |
| Representation | M Round (in person) ; M McFadden |
| Location | Auckland |
| Parties | Round v Employers Assistance Ltd |
| Summary | COMPLIANCE ORDER – PENALTY - Applicant sought compliance with settlement agreement (“SA”) – Applicant claimed respondent breached four clauses of SA – Applicant sought penalties for breaches - Applicant claimed respondent breached clause 4 of SA – Clause stated respondent would provide applicant with certificate of service (“Certificate”) detailing certain facts by certain date – Certificate stated respondent had about 40,000 clients – Applicant claimed statement false - Authority found was technical breach of clause 4 – However breach minor in nature and not flagrant or deliberate – Found applicant had opportunity to address issue prior to finalisation of Certificate but chose not to – Authority did not accept applicant too concerned not to cause offence to complain – Found applicant provided with further certificate omitting reference to number of clients - Found no requirement to order compliance – Found penalty not warranted - Applicant claimed respondent breached clause 5 of SA – Clause 5 stated parties agreed not to make disparaging remarks about the other – Applicant claimed respondent’s managing director (“L”) made disparaging remarks about him in email to employee (“G”) – L claimed was quoting comments made by G and disparaging remarks not his own - Authority found no evidence, other than applicant’s assertion, to support applicant’s contention L not quoting G’s opinion, but rather stating own disparaging remarks – Found no evidence respondent had not complied with terms of SA - Found no breach of clause 5 - Applicant claimed respondent breached clause 12 of SA which outlined way in which applicant’s departure to be communicated to staff – Applicant claimed email with agreed wording not sent to all staff – Authority found L undertook all practicable steps to ensure agreed communication distributed to staff members as required – Found was evidence communication successful to at least some staff members – Found no evidence respondent had not complied with terms of SA – Found no breach of clause 12 - Applicant claimed respondent breached clause 1 of SA – Clause 1 stated applicant’s employment would terminate by resignation on specified date and applicant agreed to go on annual leave or garden leave if requested by respondent - Applicant claimed required to take annual leave and then upon expiry of annual leave entitlement to take garden leave until end of employment - Claimed had been prior verbal agreement between himself and L that would work until end of employment – Authority found wording of clause gave respondent right to make applicant take annual leave or garden leave but not both – Found therefore applicant entitled to return to work after annual leave entitlement expired – Found therefore respondent breached clause 1 - Authority believed neither party aware that was effect of clause and was not basis for applicant’s claim for breach - Found compliance order would be redundant as applicant’s employment ended – Found breach not deliberate - Found applicant suffered no financial loss – No penalty warranted – UNJUSTIFIED DISADVANTAGE - Applicant claimed suffered hurt, humiliation and injury to feelings by respondent’s breach of clause 1 – Authority accepted being made to take garden leave when entitled to return to work may have caused applicant injury to feelings – Respondent to pay applicant $1,000 compensation subject to contribution - L claimed expected applicant to work until resignation date but applicant’s behaviour during meeting influenced decision to invoke clause 1 – L claimed applicant loudly abusive towards him – Found was contributory fault on applicant’s part - 50 percent contributory conduct – Respondent to pay applicant $500 compensation - Senior Legal Consultant |
| Result | Applications dismissed (Compliance order)(Penalty) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($1,000 reduced to $500) ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA s124;ERA s137(1)(a)(iii);ERA s149;ERA s149(4) |
| Cases Cited | Xu and Anor v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 9 |
| PDF File Link: | aa 501_10.pdf [pdf 31 KB] |