Constructive dismissal rejected but unjustified disadvantage upheld…

The Employment Relations Authority has rejected a claim for constructive dismissal after an employee resigned during an investigation into their conduct. 

The employee had previously been given a verbal warning about their conduct in the workplace and had then been given a written warning following further events.  A third process then commenced in relation to later events.  The employee decided to resign after she received a file note in relation to the earlier incident around the verbal warning.  This was because she discovered that the file note had been made only the day before she received it and not a year before as was purported to be the date of the file note.

The employee claimed constructive dismissal because of the deceptive conduct around the file note and in relation to the verbal warning and written warning given.

The ERA held that the verbal warning was defective in that the warning had been given at the same meeting as the concerns had been raised with the employee.  There had been no opportunity to take advice and to provide a response to the allegations, so the warning was defective. 

In relation to the written warning the employer had decided to withdraw the written warning and had advised the employee of this before she resigned.  The employee resigned with full knowledge that the written warning was to be withdrawn and so suffered no disadvantage from the written warning. 

In relation to the alleged deceptive conduct around the file note, the file note was typed up the day before the note was provided to the employee. However, it was based on contemporaneous hand written notes from the time of the incident.  Typing up the note was not intended to deceive and any concern the employee had over the dating of the note should have been raised with the employer for clarification. The timing of the note did not justify the employee resigning without raising matters with the employer.

The claim for unjustified constructive dismissal was rejected, as was the claim in relation to the file note and the written warning.  The verbal warning, having been defective, was an unjustified disadvantage and the employee was awarded $6,000 compensation plus costs.

Alan Knowsley

Employment Lawyer Wellington