| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 189 |
| Hearing date | 21 Mar 2011 |
| Determination date | 09 May 2011 |
| Member | E Robinson |
| Representation | K Single ; E Coates |
| Location | Auckland |
| Parties | Butler v Professional Public Relations NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed resignation was constructive dismissal - Applicant claimed job description changed without consultation, and that honesty and integrity impugned by newly appointed Chief Operating Officer (“C”), resulting in her being left with no alternative but to resign - Prior to C’s appointment applicant had reported on operational matters to previous Chief Operating Officer (“H”) and then to Managing Director (“S”) when H relocated to respondent’s Australian office – Applicant also reported to another manager on financial matters - Applicant claimed S had little understanding or experience in financial matters and consequently felt had to take more responsibility in relation to financial matters – While S on maternity leave applicant took on number of additional tasks, including responsibility for HR matters and began presenting financial information reports at senior management team meetings – As result of C’s appointment applicant told would now be reporting to C on operational matters – C made number of changes in respondent’s operation that impacted upon finance area – C informed applicant no longer required to present reports at meetings – Incident involving urgent payments where applicant believed C accusing her of lying about payments - Applicant resigned – C then resigned - Applicant attempted to retract resignation – Respondent did not accept applicant’s retraction as had already offered position to another employee - Authority found no evidence applicant’s job responsibilities altered from what had been during period when H was chief Operating officer, although was evidence that applicant on own initiative assumed more proactive role in presentation of financial information reports during S’s parental leave – Found respondent did not unilaterally alter applicant’s job description - Found was clear that in relation to incident regarding urgent payments applicant felt was being accused of lying and that her honesty had been impugned - Found no evidence C rude or abusive in attitude towards applicant - Found on applicant’s own evidence C was rather ‘bland’ in attitude towards applicant and was not rude to her - However, found applicant did have negative attitude towards C – Authority found it more likely than not, in face of evidence of C’s attitude towards applicant, and of her demeanour towards C, that applicant’s perception C accusing her of lying had been mistaken – Found no evidence of breach of duty on part of respondent which would give rise to applicant being constructively dismissed - Despite having not found breach Authority considered whether breach sufficiently serious to make it reasonably foreseeable applicant could not continue working under prevailing conditions - Found applicant made no formal complaint about C – Found respondent’s senior management team believed had good working relationship with applicant and she could have spoken to them about concerns - Found respondent had ‘Right to Speak’ policy, enabling employees to make complaints in confidence, which applicant knew about and could have utilised - Found was no notification from applicant to respondent prior to resignation that applicant regarded C’s actions amounted to serious breach of duty – Found no evidence to substantiate that was breach sufficiently serious, nor to make it reasonably foreseeable by respondent that applicant would not be able to continue working under prevailing conditions - No constructive dismissal – Authority found respondent did not act unreasonably in accepting applicant’s resignation and not allowing her to withdraw resignation following C’s departure - Found applicant resigned while in emotional state – Found respondent gave applicant time to cool down and reconsider resignation before confirming applicant wished to resign – Found while applicant indicated would withdraw resignation if C resigned written notice of resignation not conditional on that – Found respondent considered would be inappropriate to resile from plans with applicant’s replacement – Found respondent not obliged to accept applicant’s retraction of her resignation - Finance Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl10(2) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Boobyer v Good Health Wanganui Ltd unreported, Goddard CJ, 24 Feb 1994, WEC 3/94;Stiffe v Wilson & Horton Ltd unreported, Goddard CJ, 5 Dec 2000, AC 94/00;Wellington, Taranaki & Marlborough Clerical etc IUOW v Greenwich V.V. & C.F. (t/a Greenwich & Associates Employment Agency & Complete Fitness Centre) [1983] ACJ 965 ; (1983) ERNZ Sel Cas 95 |
| Number of Pages | 17 |
| PDF File Link: | 2011_NZERA_Auckland_189.pdf [pdf 56 KB] |