Posted on: Aug 19, 2014

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.

When considering the employee’s claim and whether the claimed “final straw” justified the employee’s resignation, the Employment Relations Authority referred to Pivott v Southern Adult Literacy Inc [2013] NZEmpC 236 where the Employment Court accepted four principles relating to the determination of “final straw” cases. At [61] the Court said the four principles were:

  • The final straw act need not be of the same quality as the previous acts relied on as cumulatively amounting to breach of the implied term of trust and confidence, but it must, when taken in conjunction with the earlier acts, contribute something to that breach and be more than utterly trivial.

  • Where the employee, following a series of acts which amount to a breach of the term, does not accept the breach but continues in the employment, thus affirming the contract, he/she cannot subsequently rely on the earlier acts if the final straw is entirely innocuous.

  • The final straw, viewed alone, need not be unreasonable or blameworthy conduct on the part of the employer. It need not itself amount to a breach of contract. However, it will be an unusual case where the final straw consists of conduct which, viewed objectively as reasonable and justifiable, satisfies the final straw test.

  • An entirely innocuous act on the part of the employer cannot be a final straw even if the employee genuinely (and subjectively) but mistakenly interprets the employer’s acts as destructive of the necessary trust and confidence.

The Authority noted that the employer had a duty to investigate the complaint and that it was not precluded from carrying out the investigation because the investigation would distress the employee. It concluded that the employee had “jumped the gun” by resigning. The Authority said only in an unusual case would the final straw be conduct which was reasonable and justifiable, and this was not such a case. The Authority was not persuaded that the employer undertook a course of conduct with the dominant purpose of effecting the employee’s resignation, nor was it satisfied the investigation into the complaint constituted a final straw within the meaning that phrase had in the law.


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