Constructive dismissal occurs in the following situations:

Case Study Circumstances Constructive Dismissal

Background: I am the owner of a club and bar in downtown Auckland. My night-time receptionist X has brought a personal grievance against my company claiming that she has been constructively dismissed as a result of events on 10 October and following. X has always been a good worker and a popular employee.

Constructive Dismissal Aspects Final Straw

In Barclay v Richmond Services Ltd [2014] NZERA Auckland 126, the employee claimed she had been constructively dismissed. She said the employer wished to be rid of her and she listed a number of incidents for which she had been disciplined during her employment and claimed that a complaint that she had bullied a client which led to a fifth disciplinary matter was the “final straw” that forced her to tender her resignation.

Resignation Formal Process

If an employee tenders his/her resignation during a formal process (disciplinary/investigation etc) it is important that the employer follows the correct procedure to ensure that the Company is not exposed to the risk of a personal grievance for constructive dismissal.

Benefits Mediation

The EMA has released its annual analysis of personal grievance cases heard at the Employment Relations Authority, and again it was a sorry story for employers with employees’ winning 72% of cases.

Without Prejudice Off Record Discussions Risky

Blakely v ACM New Zealand Ltd [2013] NZERA Christchurch 9 provides a textbook example of how not to initiate a “without prejudice” discussion about termination of employment.

Court Sets Bar High Waiver Mediation Confidentiality

The first ground for her application was that, being a criminal offence, the alleged blackmail could not form part of the “purposes of mediation” referred to in section 148 of the Employment Relations Act 2000 and therefore fell outside the statutory confidentiality granted by that section. As an alternative, she asserted that the alleged blackmail fell within the exception considered, but not determined, by the Court of Appeal in Just Hotel Ltd v Jesudhass (2008) 8 NZELC 99,137. The Court there had opened the possibility of “evidence of serious criminal conduct” during a mediation being admissible, as a public policy exception.

Volunteer Employee

If you thought working for food or accommodation was volunteering, think again. By law, anyone working in return for food and accommodation is an employee in accordance with section 6 of the Employment Relations Act 2000.

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