| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 228 |
| Hearing date | 13 May 2011 |
| Determination date | 30 May 2011 |
| Member | R Larmer |
| Representation | J Golder ; A Price |
| Location | Auckland |
| Parties | Golder v Jamor Holdings Ltd t/a Columbus Coffee Lincoln Road |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent did not want applicant to return to usual duties and had no option but to resign – Respondent claimed applicant resigned as did not want to face disciplinary action after ongoing performance concerns - Applicant had horse riding accident, suffered brain injury – Manager (“J”) told applicant’s case worker had new employee (“F”) and could only take applicant back on part-time basis – J claimed did not offer F fixed term as did not know anything about fixed term employment and thought F would not accept temporary work – No evidence J discussed temporary position with F – J claimed did not contact employment agency as would get someone unknown – J aware applicant would be returning to work – Applicant returned to work through ACC Stay At Work Programme (“SAWP”) – Parties agreed applicant would return on trial with alternative duties and reduced hours – Applicant initially agreed to front of house duties – Applicant claimed expected to return to usual duties if trial successful – Claimed not offered work for all medically cleared hours – Authority found applicant believed front of house duties only temporary measure and repeatedly told J was fit to return to kitchen duties – Applicant’s occupational therapist (“S”) requested J allow applicant to work in kitchen - S’s later reports noted applicant’s frustration with front of house duties and applicant considering other jobs – J claimed did not recall one report and concerned about applicant’s performance and attitude – Applicant discontinued SAWP as respondent failed to return applicant to kitchen duties or increase hours – Respondent issued written warning alleging applicant criticised J in front of customers – J denied told applicant did not have to give applicant kitchen duties as on ACC too long and employment agreement void – Applicant notified respondent employment agreement not void until both parties agreed to amend – Authority found J told applicant employment agreement void – Chef at respondent resigned and applicant told J medically cleared and wanted position – J did not respond and filled vacancy with other employee – Authority found respondent failed to notify applicant concerned about attitude and had duty to return applicant to kitchen role when medically cleared – Found respondent should have given applicant vacant position before managed performance concerns – Respondent issued second written warning alleging applicant rude to customers – Applicant resigned same day – Authority found respondent should have raised issues with applicant and given chance to respond before issued warnings - Noted applicant repeatedly told respondent wanted to return to kitchen, invited respondent to mediation and respondent aware applicant medically cleared – Found respondent’s decision to replace applicant with F unilaterally varied employment agreement and failed to notify applicant first or explore temporary options – Found respondent unreasonably refused to return applicant to usual duties - Found serious and ongoing breach of duty by respondent caused applicant to resign – Unjustified constructive dismissal – REMEDIES – 30 percent contributory conduct – Authority noted applicant provided detailed evidence of humiliation including medical problems - $5,000 compensation appropriate - Head Chef |
| Result | Application granted ; Compensation for humiliation etc ($5,000 reduced to $3,500) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s124 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) 2 NZLR 372;NZ Woollen Workers IUOW v Distinctive Knitwear NZ Ltd (1990) ERNZ Sel Cas 791;Wellington Clerical Workers’ Union v Barraud & Abraham Ltd [1970] 70 BA 347;Wellington, Taranaki and Marlborough Clerical IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Auckland_228.pdf [pdf 45 KB] |