| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 86 |
| Hearing date | 28 Oct 2010 |
| Determination date | 07 March 2011 |
| Member | D King |
| Representation | B Hayes ; B Bhanabhai |
| Location | Auckland |
| Parties | Munro v Hibiscus Coast Security Ltd and Anor |
| Other Parties | Dowden t/a Safeguard Security |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably constructively dismissed – Claimed resignation caused by breaches of respondent’s duty being making false allegations of assault to Police, failing to investigate applicant’s conduct, abusive conduct, and suspending applicant without pay for 16 months - Applicant had physical altercation with partner of director of respondent (“D”) – Police called, applicant removed from premises and charged with assault – Applicant subsequently found not guilty in District Court – D had spoken to respondent’s General Manager day before altercation about concern applicant illegally taking fuel – Parties discussed suspending applicant - Day of altercation applicant handed letter notifying him was being suspended without pay until complete investigation carried out into alleged serious misconduct - Applicant resigned on grounds of constructive dismissal about 16 months after suspended – In interim applicant had applied for unemployment benefit where stated had been fired from previous employment and was looking for full time employment – Authority found as respondent had not raised objection to grievance being raised out of time had given implied consent to raising of grievance – Found applicant did not raise protest at time of suspension – Found applicant made no attempt to contact respondent or instruct representative – Found applicant looked for other employment and applied for unemployment benefit - Authority found applicant’s employment terminated on day received suspension letter and had altercation with D – Found applicant accepted could not go back to work and regarded employment as at an end – Found fact respondent wrote to WINZ stating employment not terminated did not alter fact applicant believed employment ended and acted accordingly - Found applicant did not attribute feeling could not go back to work to belief suspension unjustifiable and breach of employment agreement – Found rather applicant felt could not go back to work because of physical altercation and fact Police called and he had been removed from premises - No constructive dismissal - UNJUSTIFIED DISADVANTAGE – Applicant claimed suspension without pay was unjustified disadvantage - Authority found employment agreement did not allow for suspension without pay – Found applicant given no opportunity to comment on suspension before handed letter – Found suspension unjustified - Unjustified disadvantage – Remedies – Found as employment terminated on day of suspension and applicant paid to that date no reimbursement of lost wages could be awarded – Authority found no evidence provided that applicant suffered distress attributable to suspension - No compensation awarded - ARREARS OF HOLIDAY PAY – Respondent accepted applicant not paid all holiday pay owed – Respondent to pay applicant outstanding holiday pay - Security Guard |
| Result | Application dismissed (Unjustified dismissal) ; Applications granted (Unjustified disadvantage)(Arrears of holiday pay) ; Arrears of holiday pay (Quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Social Security Act 1964 s89;Social Security Act 1964 s89(1) |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_86.pdf [pdf 35 KB] |