Three60 Consult Logo

Constructive Dismissal Aspects Final Straw

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.

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.

Subscribe to Newsletter

Christmas is coming…

Christmas is coming…

Once Labour Day has been [yes, believe it or not it’s this coming Monday], the next public holidays are at Christmas and New Year. It always feels like employers have to put a bit more thought into Christmas and New Year because: there are four public holidays; this is a time that many businesses have their annual closedown period; many employees take their annual leave; some employees don’t have enough leave to cover this period; some employment agreements have special rates for these public holidays; and, let’s face it, it is a busy busy busy time. In the next few weeks, my colleague, Tasneem Begum, and I will be offering a free webinar for those employers who want a bit more information around those tricky calculations for leave at this time of the year. We will also be able to answer the questions you have and the challenges you face with leave during the Christmas/New Year period. You are not alone with the questions you have – Questions we are often asked at this time of the year are about employing staff to cover the busy Christmas period

Read More
What the heck is going on with pay?

What the heck is going on with pay?

While we are conscious of the impact that inflation is having on wage and salary conversations, there are four other levers that have been, and are being, used to bring about fundamental change and significant uplift to pay in New Zealand. The Government is using these levers to drive increases in pay at various levels in ways that we may not be conscious of. However, when brought together as a single thread, they are having a big impact.

Read More
To Mediate or not to Mediate

To Mediate or not to Mediate

To mediate or not to mediate – that is the question… While William Shakespeare put into verse Hamlet’s soliloquy in endless agonising verse about dire choices with absolutely no chance of a happy ending – it is not so with mediation. Change the name, and the thinking around the word mediation. Let’s start thinking about it and calling it “an opportunity”. That’s really what mediation is; an opportunity for parties in conflict to come together and sort out their problem(s). It doesn’t have to be the only option, but it should be considered as a first step.

Read More
PREV NEXT