| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 132 |
| Hearing date | 6 Sep 2011 |
| Determination date | 08 September 2011 |
| Member | P Cheyne |
| Representation | R McFarlane (in person) ; D Lloyd, K Logan |
| Location | Queenstown |
| Parties | McFarlane v Queenstown Accomodation Centre |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed resigned in circumstances that meant had been constructively dismissed – Applicant received written warning – Respondent sent second letter that stated was applicant’s third warning but referred only to issues in respondent’s earlier letter – Applicant received another warning two days later about new but related issue – Applicant claimed chose not to respond to warnings as felt bullied and responding would only “fuel the fire” – Applicant took leave and when returned claimed found matters not recorded in diary and applicant’s failure to record matters one of respondent’s earlier complaints – Applicant offered opportunity to work for another company (“BRL”) and could start when wanted to - Applicant claimed thought would only be matter of time until dismissed by respondent and resigned – Applicant’s letter of resignation referred to possible conflict of interest with BRL – Respondent’s director and general manager (“B”) put applicant on garden leave – B discovered next day that applicant already working for BRL - Parties had meeting and B accepted applicant only required to give one week’s notice – Authority found applicant timed resignation to ensure received annual bonus and resigned because had secured new job – Found applicant’s resignation not caused by respondent’s warnings and applicant not constructively dismissed – No constructive dismissal - ARREARS OF BONUS PAYMENT – Applicant claimed not paid full bonus payments – Applicant signed two employment agreements during employment – Found second employment agreement applicable – Applicant claimed should have been paid maximum available bonus – When one property manager left all work reallocated to applicant and remaining property manager – Found B told applicant before parties agreed to new agreement unless was “drastic change” applicant would receive bonuses according to employment agreement – New agreement included same bonus clause but targets not changed to take into account extra properties assigned to applicant – Found respondent said nothing further to applicant about yearly bonuses – Found agreement stated if applicant’s portfolio increased by ten percent entitled to one or both bonus payments – Respondent claimed as number of houses and gross rental income decreased overall applicant only entitled to portion of bonus – Found bonuses assessed on individual portfolio basis – Found applicant met targets and entitled to maximum bonus – Respondent to pay applicant $5,490 outstanding balance of bonuses - Property Manager |
| Result | Application granted (arrears of bonus payment) ($5,490) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s68 |
| Cases Cited | Association of Staff in Tertiary Education Inc: ASTE Te Hau Takitini O Aotearoa v Hampton, Chief Executive of Bay of Plenty Polytechnic [2002] 1 ERNZ 491;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers’ IUOW Inc [1994] 1 ERNZ 168;Auckland etc Shop Employees Etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;New Zealand Tramways and Public Transport Employees Union Inc v Transportation Auckland Corporation Ltd [2006] ERNZ 1005;Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] ERNZ 317 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Christchurch_132.pdf [pdf 25 KB] |