| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 262 |
| Hearing date | 10 May 2011 - 17 May 2011 (2 days) |
| Determination date | 20 June 2011 |
| Member | E Robinson |
| Representation | I Baboza (in person) ; P Swarbrick |
| Location | Auckland |
| Parties | Barboza v The Warehouse Ltd |
| Summary | PRACTICE AND PROCEDURE – Whether accord and satisfaction - UNJUSTIFIED DISMISSAL – Poor Performance – Respondent claimed applicant resigned in accordance with Agreement of Settlement (“settlement”) between parties - Applicant claimed did not understand settlement final and binding - Applicant placed on performance plan – Applicant issued with final warning for poor performance – Applicant allegedly breached confidentiality and brought respondent into disrepute – Applicant suspended on full pay pending investigation – Disciplinary meeting held to discuss applicant’s performance and concerns applicant approaching customers and employees about performance although respondent instructed not to do so – Applicant emailed Human Resources Manager (“W”) claiming had information about conduct of fellow employees – At meeting with W applicant gave W letter of resignation – W claimed explained to applicant if accepted resignation second disciplinary meeting would not go ahead – Applicant asked W to keep letter on understanding no action would be taken before explained view of matters at second meeting – W claimed told union representative (“M”) if dismissal likely outcome, resignation option would be addressed – M claimed did not discuss resignation possibility but generally aware other employees could resign where dismissal inevitable – Manager (“B”) told applicant explanation for performance unsatisfactory and would accept resignation as full and final resolution of all matters – Parties agreed W read out each and explained each settlement clause in colloquial terms to applicant – M claimed W told applicant final and binding meant once settlement agreed was end of matter – M claimed applicant said satisfied with settlement – Applicant claimed did not raise any concerns as wanted to get best out of situation – Applicant acknowledged had told W after signing settlement W had “taken load off his mind” – Respondent claimed settlement full and final and precluded applicant from raising personal grievance - Applicant claimed did not understand what final and binding meant and had signed settlement as only way could obtain money – Authority found applicant believed dismissal likely when met with W and prepared resignation letter in anticipation – Found applicant raised resignation possibility with M before disciplinary meeting – Found was accord and satisfaction and applicant precluded from bringing unjustified dismissal claim – Found if applicant unsure of meaning of final and binding had opportunity to discuss doubts with W and did not do so – Found applicant aware of employment agreement’s dismissal clause stating would be paid in lieu of notice period and did not believe signing settlement was only method of obtaining final monies – Found applicant freely and willingly entered into settlement – No dismissal - Loss Prevention Officer |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Cases Cited | British Russian Gazette and Trade Outlook Ltd v Associated Newspapers Ltd [1933] 2 KB 616;Cabletalk Astute Network Services Ltd v Cunningham [2004] ERNZ 506;Graham v Crestline Pty Ltd [2006] ERNZ 848 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_262.pdf [pdf 29 KB] |