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Constructive dismissal — aspects of the “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 […]

Case study: Circumstances for constructive dismissal

In the case study below we look at the circumstances for constructive dismissal and advise the likelihood of a successful personal grievance claim. 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 […]

“Without prejudice” (off the 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. In that case, an employer was dissatisfied with the performance of one of its managers and resolved to dismiss her. The employer did not advise the employee about its […]

Court sets the bar high for waiving mediation confidentiality

An employee who wanted a blackmail threat allegedly made during mediation by her ex-employer’s representatives to be admissible evidence was unsuccessful before the Employment Court. 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 […]

What is constructive dismissal?

Constructive dismissal occurs in the following situations: when an employer gives the employee a choice between resigning or being dismissed when an employer follows a course of conduct with the deliberate and dominant purpose of coercing an employee to resign when a breach of duty by the employer led the employee to resign With constructive […]

Resignation during a 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. Disciplinary procedures or investigations can be very stressful for employees and as a result they […]