| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 143 |
| Hearing date | 2 Nov 2010 - 3 Nov 2010 (2 days) |
| Determination date | 11 April 2011 |
| Member | J Wilson |
| Representation | C Stewart ; A Sherriff |
| Location | Gisborne |
| Parties | Faulkner v Secretary for Justice |
| Summary | UNJUSTIFIED DISADVANTAGE - Discrimination - Applicant claimed discriminated against because of union activities and unjustifiably disadvantaged by respondent's performance management - Applicant took industrial action and, although not required to do so, advised District Manager (S") - S's letter to applicant claimed did not clearly notify respondent taking industrial action, should have given more notice and asked own manager for replacement - Respondent claimed applicant unable to follow S's instructions and applicant would be placed on performance action plan - S claimed not formal management process - S denied action prompted by applicant taking industrial action and claimed applicant used strike to cover up poor performance - Applicant took sick leave due to work-related stress - Respondent denied applicant had taken all reasonable steps in relation to work-related stress - Applicant provided further medical certificate and claimed needed to be on indefinite leave until matters resolved - Mediation unsuccessful - Applicant claimed trust and confidence undermined and no choice but to resign - Authority found S's letter direct result of applicant's participation in strike and respondent did not provide evidence contemplated raising performance concerns in another forum - Found applicant discriminated against as result of union activities although respondent had genuine concerns about applicant's performance - Found applicant not unjustifiably disadvantaged by performance plan - Found respondent unilaterally revoked applicant's sick leave entitlement - Found applicant unjustifiably disadvantaged by respondent revoking sick leave - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent claimed applicant resigned of own accord - Respondent claimed resignation complete surprise - Authority found no evidence applicant advised respondent considered resigning - Found should have been obvious to respondent applicant believed returning to hostile workplace and had little option but to resign - Dismissal unjustified - REMEDIES - No contributory conduct - Application for reinstatement declined as no alternative position available - Reimbursement of wages appropriate - $10,000 compensation appropriate - Team Leader" |
| Result | Applications granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103;ERA s104;ERA s104(1)(b);ERA s104(2);ERA s107;ERA s119;ERA s123(1)(b);ERA s124 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial Districts Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 |
| Number of Pages | 18 |
| PDF File Link: | 2011_NZERA_Auckland_143.pdf [pdf 55 KB] |