| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 450 |
| Hearing date | 7 Jun 2011 - 9 Jun 2011 (3 days) |
| Determination date | 20 October 2011 |
| Member | R A Monaghan |
| Representation | S Austin ; J Humphrey |
| Location | Whakatane |
| Parties | Merito v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Anor |
| Other Parties | Ngati Awa Tertiary Training Organisation Trust |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed constructively dismissed by first respondent (“T”) - Applicant claimed was initially employed by second respondent (“O”) but T became employer – Authority found O remained applicant’s employer throughout and T did not trade as O – O had financial and management difficulties – T provided O with significant management and financial support – Applicant assisted with O’s financial records, aware that O in crisis and reported to T’s interim chief executive (“G”) – Applicant claimed overheard G and employee discussing whether O’s accounts should be moved to T but matter was not raised directly with applicant - Found G’s discussion with employee only addressed O’s assistance with accounts and not future of applicant’s employment – O’s manager (“R”) began restructuring process and told O’s employees would be new staffing structure and recruitment process for new positions – Applicant told R that manager O’s finances and function would be transferred to T following year therefore applicant’s employment would end – R claimed unaware of applicant’s transfer and had not been discussed or agreed to – Found unlikely R acknowledged that applicant’s duties would be transferred and applicant misunderstood applicant’s failure to discuss matter further - R asked applicant to ensure required documents available as O late completing financial audit – Applicant failed to find all documents by agreed deadline – Applicant claimed could not meet deadlines as distracted at work – R agreed applicant could work from home and extended deadline – Applicant resigned before deadline as claimed would lose position when role transferred to T – Applicant claimed would continue to update records until last day - O’s restructure did not include position corresponding to applicant’s position – R contacted applicant three weeks after received resignation asking for accounts and visited applicant’s home two days later – R claimed wanted to ensure current employee payments were processed – Applicant told R would report to work on day paid staff but parties did not discuss resignation – Applicant found letter from R on day reported to work that termination of employment was effective immediately as R had found required documents and T would process payroll – R sent applicant email on day applicant reported to work and claimed applicant had failed to report for work and parties would meet to discuss applicant’s future employment – Found time applicant reported for work not clear but likely applicant reported about middle of day – Applicant claimed R failed to address in timely way transfer of O’s accounts to T – Found applicant’s resignation letter did not indicate resignation voluntary and showed applicant believed transfer of position had already been decided by O – Found if applicant’s understanding was wrong R should have promptly explained matters – R claimed restructure did not include position similar to applicant’s as applicant had said would be terminating employment – Found when R dissatisfied with applicant’s progress in providing requested documents and believed applicant had not reported to work R terminated applicant’s employment – Found R justifiably dissatisfied with applicant’s performance but did not justify termination of applicant’s employment – Found circumstances of applicant’s resignation and acceptance amounted to dismissal – Found dismissal based on view applicant had resigned and applicant had no opportunity to provide input on decision – Dismissal unjustified – REMEDIES – 25 percent contributory conduct - Found reinstatement not practicable as restructure did not include applicant’s position - $6,750 reimbursement of lost wages appropriate - $500 compensation appropriate - ARREARS OF HOLIDAY PAY – Applicant sought outstanding holiday pay but withdrew claim at investigation meeting – Found unable to determine if applicant entitled to outstanding holiday pay as applicant withdrew claim – Parties to determine applicant’s entitlement - Accounts Manager |
| Result | Applications granted ; Contributory conduct (25%) ; Reimbursement of lost wages ($9,000 reduced to $6,750) ; Compensation for humiliation etc ($500) ; Arrears of holiday pay (parties to determine quantum if any) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Part 6A;ERA s66;ERA s123;ERA s124;ERA s125;ERA s126;ERA s127;ERA s128;ERA s128(2);ERA s128(3) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Offices IUOW [1994] 2 NZLR 415;Merito v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Ngati Awa Tertiary Training Organisation Trust [2011] NZERA Auckland 453;Peka v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Ngati Awa Tertiary Training Organisation Trust [2011] NZERA Auckland 451;Snell v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Ngati Awa Tertiary Training Organisation Trust [2011] NZERA Auckland 452 |
| Number of Pages | 15 |
| PDF File Link: | 2011_NZERA_Auckland_450.pdf [pdf 66 KB] |