| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 388 |
| Hearing date | 28 Apr 2011 |
| Determination date | 08 September 2011 |
| Member | K J Anderson |
| Representation | L Stewart ; K Stretton |
| Location | Tauranga |
| Parties | Esdaile v Royal New Zealand Society for the Prevention of Cruelty to Animals Inc - Tauranga Branch |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed constructively dismissed - Respondent governed by Committee of unpaid volunteers and applicant had working relationship with Committee’s Chairman (“G”) – Applicant claimed when returned to work after holiday noticed office manager’s (“R”) change in attitude – Authority found no evidence before applicant took holiday applicant’s relationship with Committee not mutually agreeable - Applicant on sick leave for month – Applicant claimed when visited employees during sick leave notice two employees refused to talk and no eye contact from R - Applicant told G concerned about previous day’s reception and G told applicant everything fine – Found G less than honest as G had previously met with employees to discuss “things happening” at workplace – G and committee member (“B”) met with employees at offsite location outside working hours – G claimed R said wanted to discuss concerns including applicant submitting unauthorised time sheets and difficulty in getting credit card usage information – B claimed employees wanted to talk “off the record” – G claimed six employees present at meeting discussed concerns about applicant – Committee members present at meeting claimed shocked at allegations, arranged to meet again next week and sought legal advice – Committee meeting took place two weeks later with legal advisor (“S”) present – Committee member claimed agreed at meeting employees allegations could be exaggerated, was little evidence and action required but needed to minimise potential distress to applicant – Committee agreed S would draft letter to applicant – Applicant claimed had brief discussion with G on day returned to work after month’s sick leave and told committee member (“T”) would call to discuss performance review – Applicant called T and offered to assist with performance indicators and T confirmed meeting to discuss “couple of issues” – T and applicant met following day to discuss letter – T claimed told applicant employees had concerns about applicant’s management style, felt applicant sometimes difficult to approach and employee had considered leaving – T claimed applicant demanded to know “who had said what and to give times and dates” and employees on “witch-hunt” – T claimed tried to explain to applicant Committee supported applicant fully and shocked and saddened by applicant’s response – Applicant claimed letter full of insinuations but no evidence and felt betrayed by Committee – Applicant criticised Committee for putting issues in writing instead of meeting personally – T claimed told applicant could ring any time and wanted to keep communication open – Authority found T discussed difficult issues with applicant in sensitive and sensible manner – Applicant claimed trust in everyone completely destroyed especially as G had not dealt with applicant personally and lied many times – Applicant claimed when returned to work after meeting had heart palpitations, broke down in tears at desk and asked employees why had not told applicant they were unhappy – Applicant sent email to Committee next day that baseless allegations meant untenable for applicant not to resign and had possible constructive dismissal claim – Applicant sent second email next day that would be on stress leave and requested meeting as soon as possible – T claimed believed could still work with applicant to resolve situation – T claimed applicant said wanted to reply to Committee’s letter in writing and T offered to assist – T claimed when applicant forwarded proposed written response was shocked by content and suggested applicant think about reply over weekend – Applicant revised response but T again suggested inflammatory and produced suggested outline for letter – Applicant met with T again to discuss issues further – Applicant sent email to T two days later that had sought further advice, thought Committee’s letter disciplinary and indicated could take legal action – Applicant sent Committee letter three days later responding to allegations – Applicant attended meeting with respondent where applicant read out further statement but matters in Committee’s letter and applicant’s first statement not discussed – Applicant’s second statement concluded Committee had no evidence of allegations and set out options of applicant continuing employment if Committee gave full apology, applicant resigning with confidentiality agreement or that applicant would resign and claim personal grievance - Found applicant’s first statement reasonably rational but second statement combination of conciliation and confrontation – Applicant claimed due to Committee’s failure to respond at meeting felt had no option but to resign – T claimed no attempt made by Committee to discuss matters as atmosphere “highly charged” and members “shell shocked” – Committee agreed not to accept resignation and sent applicant letter asking to continue discussions and suggested meeting – G claimed applicant later cancelled meeting after sought legal advice – Applicant claimed G’s lies about employees meeting, respondent’s failure to provide details of allegations and failure to discuss matters at meeting resulted in resignation – Found respondent governed by committee of well-meaning volunteers with little experience in employment relations – Found G failed to be open about employees concerns but did not deliberately mislead or lie to applicant – Found Committee did not deliberately withhold information from applicant and gave constant assurances did not have disciplinary issues with applicant – Found regardless of how respondent approached matters applicant’s reaction likely to have been equally destructive of relationship – Found applicant went to meeting with resignation letter and difficult to accept applicant ever intended to have rational discussion – Found Committee’s actions overall did not amount to any breach of duty that meant resignation foreseeable – No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by respondent’s failure to specify allegations as unable to respond effectively – Found any possible future disadvantage to applicant speculative at best and negated by resignation - PENALTY – Applicant claimed respondent breached good faith obligations – Found while G not always responsive and communicative, G’s failure not deliberate, serious or sustained – No penalty - General Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(b);ERA s103(1)(b);ERA s160(3);Wages Protection Act 1983 |
| Cases Cited | 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 |
| Number of Pages | 23 |
| PDF File Link: | 2011_NZERA_Auckland_388.pdf [pdf 79 KB] |