| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 126 |
| Hearing date | 25 Nov 2010 - 26 Nov 2010 (2 days) |
| Determination date | 19 August 2011 |
| Member | P Cheyne |
| Representation | J Marquet ; J Wilson, D Hudson |
| Location | Dunedin |
| Parties | Smaill v Sims Brothers (1992) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed bullied, abused and assaulted by principal of respondent (R") so that work environment became intolerable and had to resign – Applicant claimed yelled and sworn at by R for using wrong cleaning chemicals – R claimed raised voice but did not swear – Applicant attended meeting at which R and service manager (“E”) brought up number of concerns about applicant – Applicant claimed felt bullied as result of meeting – Applicant attended meeting with parents, R and E at which numerous specific complaints about applicant’s work were raised – R and E agreed that applicant would have representative present at any further meetings – R and E berated applicant at meeting about way applicant responded to R and applicant not given opportunity to explain – Applicant’s father rang R to arrange meeting to discuss matters – R agreed to arrange meeting but did not do so – Applicant claimed twice hit on head by R and verbally abused by R before being struck – R denied hitting or abusing applicant – Applicant took limo to work function with parents and colleague – Applicant claimed principal of respondent (“B”) criticised applicant at work for taking limo – B accepted was angry at applicant for taking limo but claimed did not criticise applicant at work – E swore at applicant for carrying out task without E present – Applicant attended meeting with E and told options either written warning or “DCM (Don’t come Monday)” – E gave applicant written warning for disobeying order – Applicant’s solicitor wrote to respondent raising personal grievance about final warning – R raised voice to applicant for breaking vice – E berated applicant for taking too much time over job – Applicant claimed sworn at by R when collected tools from workplace – R denied swearing at applicant – Parties unable to resolve matter in mediation – Applicant resigned – Authority preferred applicant’s evidence – Found applicant’s resignation caused by abuse and physical assaults – Found abuse and bullying was of serious nature – Found reasonably foreseeable R’s conduct might result in applicant’s resignation – Found R’s conduct when applicant collected tools came very close to an actual dismissal – Dismissal unjustified – REMEDIES – No contributory conduct – Found applicant prescribed antidepressant medication as result of symptoms attributed to what had been happening at workplace – Found even if applicant’s depression not wholly caused by proven workplace abuse the respondent’s wrongful actions made it more serious than it would otherwise have been – $10,000 compensation appropriate – Found evidence about lost remuneration unsatisfactory – Leave reserved to determine lost remuneration – Apprentice Mechanic" |
| Result | Application granted ; Compensation for humiliation etc ($10,000) ; Reimbursement for lost wages (quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) [1994] 1 ERNZ 168;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 |
| Number of Pages | 17 |
| PDF File Link: | 2011_NZERA_Christchurch_126.pdf [pdf 53 KB] |