| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 115 |
| Hearing date | 20 Jul 2011 |
| Determination date | 29 July 2011 |
| Member | J Crichton |
| Representation | M Zetko ; R Vohora |
| Location | Dunedin |
| Parties | O'Sullivan v Maori Hill & Balmacewen Pharmacy Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant abandoned employment and contrived grievance – Applicant raised enrolment in training programme with respondent numerous times but received no response – Applicant received enrolment form for Open Polytechnic after complained to Labour Inspector – Applicant signed form and returned to respondent but no enrolment was ever completed – Applicant claimed frightened of respondent after contacted Labour Inspector and did not give straight answers to questions as result – Respondent claimed source of constant frustration that applicant did not give straight answers – Responded claimed told by applicant numerous times that complaint withdrawn – Applicant claimed afraid to tell respondent complaint not withdrawn – Respondent told applicant employment at risk if did not withdraw complaint – Applicant believed given four weeks notice by respondent representative (“V”) – V clarified that no notice given but told applicant to resign – Respondent told applicant to accept training wage for duration of employment and then enrolment would be organised – Applicant discovered respondent advertising position – Applicant viewed respondent’s latest statement as final straw and resigned – Respondent claimed did not put unreasonable pressure on applicant and only wanted to clarify applicant’s intentions – Authority found employment agreement fundamentally deficient in failure to identity requisite elements of training – Found difficult to see how applicant could be expected to bear responsibility for completing enrolment protocols – Found applicant entitled to minimum wage not training wage as not receiving necessary credits – Found no clearer case of employer putting unreasonable pressure on employee to withdraw claim – Found respondent’s behaviour either had dominant purpose of ending employment or so grave that created fundamental breach of duty as good and fair employer – Dismissal unjustified – REMEDIES – No contributory conduct – $5,000 compensation appropriate – $3,000 reimbursement of wages appropriate – Trainee Pharmacy Technician |
| Result | Application granted ; Compensation for humiliation etc ($5,000) ; Reimbursement of lost wages ($3,000) ; Costs to lie where they fall ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | Minimum Wage Act 1983 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Christchurch_115.pdf [pdf 31 KB] |