| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 181 |
| Hearing date | 27 Oct 2011 |
| Determination date | 16 November 2011 |
| Member | G J Wood |
| Representation | I Hard ; B Scotland |
| Location | Wellington |
| Parties | Jenner v Petone Working Men's Club and Literacy Institute |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed constructively dismissed as respondent failed to remedy health and safety issue and did not allow applicant to withdraw resignation – Respondent claimed applicant resigned – Respondent also operated management contract for other clubs and respondent required that some car parks close to respondent’s entrance be kept free for other clubs’ management – Applicant usually one of last employees to leave at night and sought to park in car parks close to entrance and would park in management car parks if no other parks close to entrance available – Respondent’s office often held cash but car parks were secure and cameras installed – Applicant failed to raise car park issue with respondent – Applicant parked in respondent’s general manager’s car park and was asked to move car – Applicant told respondent that would quit and had always said if asked to move car would leave – Applicant acknowledged “threw toys out of cot” when asked to move car and later apologised to duty manager (“X”) - X told applicant was aware of policy and security guard could walk applicant to car or could move car during shift – Applicant claimed X’s options not practical - Applicant sent respondent resignation letter stating that due to safety risk felt had to resign – Respondent decided needed advice before responded to applicant but began advertising applicant’s position as claimed position very important to respondent – Applicant claimed shocked when saw job advertisement and believed respondent would have first asked applicant to stay – Applicant requested parties have meeting – Respondent’s chief executive officer (“W”) asked X to ask applicant to come in – Applicant declined to meet without representation – Applicant not told meeting’s purpose was only to arrange date for formal meeting – Both parties frustrated by miscommunication – Applicant failed to respond to W’s suggested meeting dates – Applicant’s lawyer told W applicant retracted resignation letter and respondent needed to resolve health and safety issues – Respondent claimed replacement had already accepted job offer and not in position to accept applicant had withdrawn resignation – Authority found applicant chose not to discuss car park issue with respondent and decided to resign – Found respondent had duty to consider applicant’s request to withdraw resignation in good faith but applicant’s resignation could not be withdrawn without respondent’s agreement – Found as applicant’s resignation letter referred to constructive dismissal not surprising respondent sought advice before responded – Found applicant had no right to withdraw resignation through applicant’s lawyer – Found as respondent had offered applicant’s position to another person respondent’s letter to applicant in good faith – Found applicant had no right to particular car park and respondent offered alternative to help ensure applicant’s safety – Found no breach of duty led to applicant’s resignation and not foreseeable – Found both parties could have been more responsive and communicative but respondent’s actions did not disadvantage applicant – No dismissal – COSTS – One day investigation meeting – Applicant to pay respondent $3,000 contribution towards costs - Receptionist |
| Result | Application dismissed ; Costs in favour of respondent ($3,000) |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Local Authorities IUOW [1994] 1 ERNZ 168;New Zealand Institute of Fashion Technology v Aitken [2004] 2 ERNZ 340 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Wellington_181.pdf [pdf 53 KB] |