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.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Posted on: Aug 19, 2014

Question: An employee has had a workplace accident. The employee has sick leave available. I understand they are entitled to be paid for the first week (or part thereof) to compensate them for lost earnings, at 80% of what they would have earned that week. Can an employee choose to receive sick leave rather than 80% of their standard wage when they have a workplace accident?

 Answer: An employee’s entitlement to sick leave is different from the entitlement to compensation for accidents. Sick leave cannot be used in the place of accident compensation but sick leave can legally be used to top up the 80% accident compensation payment. Because employees are entitled to sick leave when injured, there is a potential overlap between the sick leave entitlement under the Holidays Act 2003 (the Act) and the right to weekly compensation under the accident compensation scheme. Section 71 of the Holidays Act addresses this overlap and provides an employer must not require an employee to take sick leave for any period during which the employee is paid weekly accident compensation. The employer is not allowed to deduct the time from the employee’s sick leave entitlement. However, the Act also provides if an employer pays the difference between the employee’s first week compensation or weekly compensation and the employee’s ordinary weekly pay, the employer may agree with the employee that he or she may deduct from the employee’s current sick leave entitlement one day for every five whole days that the employer makes that payment. The employer and employee are both bound to deal with each other in good faith. Accordingly, the employer must consider an employee’s request and give good substantial reasons for declining it if the employer decides to do so.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.