Employees are entitled to raise a Personal Grievance for Constructive Dismissal.
Within a recent case at the Employment Relations Authority (ERA) – Clare Jeffries v Accident Compensation Corporation (“ACC”) [2024] NZERA 297 3237680 the Authority Member was required to address whether the Employee was Constructively Dismissed and place in an unjustified position.
See – https://determinations.era.govt.nz/determination/view/19544
Ms Clare Jeffries filed a Statement of Problem with the Authority claiming that she was unjustifiably constructively dismissed, and that she had suffered an unjustified disadvantage by being discriminated against by her employer during the period of her employment. Ms Clare Jeffries believed she had advised ACC that she would be studying full-time until she completed her bachelor’s degree, with her potentially continuing to study if she was accepted into a master’s program which was by invite only.
ACC’s view on this matter was that they had agreed that Ms Jeffries was to complete her studies for her bachelor’s degree while working for them and then they understood that she would continue her employment on a full-time basis thereafter. Once Ms Jeffries completed her bachelor’s degree, she had obtained entry into the master’s program with this being fully remote.
The Acting Team Manager became aware that Ms Clare Jeffries had been accepted into the master’s program and was intending to continue to study full-time and work full-time, with her advising the Manager of this on their return to work.
Ms Clare Jeffries Manager acknowledged that although discussions had occurred during the interview regarding Ms Clare Jeffries studies, she had not realised that this would be on a full-time basis as ACC’s understanding was this this would end at the end of the year and Ms Jeffries would not continue studying.
Therefore, in order to address this situation Ms Clare Jeffries Manager contacted her Manager (Ms Tinson) for advice and the best way to address this matter.
Ms Tinson set out her views in an email to ACC’s Human Resources team to seek advice on how to best approach this matter, with Ms Tinson receiving advice and drafting a letter on 1 February 2023 to Ms Clare Jeffries via email.
With in the letter it stated “ACC cannot approve of this work arrangement” for the following four (4) reasons:
- That “this arrangement you have proposed stretches the good faith relationship”,
- “Studying full-time is outside the parameters of what we would support”,
- A full-time course of study may not be able to be accommodated with annual leave as we would not be able to effectively monitor and oversee your work activities”,
- ACC does not encourage working from home for new staff”.
The letter concluded by stating the following:
“You also have the option to come back to me if you are willing to inform me of an alternative proposal with a plan that is less than full-time study for example with less than 20 hours per week”
“I ask you to think about what alternative arrangements meet your life goals”.
On receipt of the letter, Ms Clare Jeffries reviewed this, and within 27 minutes after receiving the letter she resigned from her employment and raised a Constructive Dismissal claim along with other claims stating she had no alternative options but was forced to resign.
During the ERA case proceedings, The Authority Member had to first determine whether Ms Clare Jeffries had been constructively dismissed from her employment or not.
To determine whether there she was constructively dismissed, there must not only be a breach of duty by the Employer but also the breach must be of such a nature as to make the Employee’s resignation reasonably foreseeable.
However, not every breach of the employment agreement will lead to a Constructive Dismissal. There must be a breach of a sufficiently serious nature to bring a reasonable employee to the conclusion that the Employer does not intend to be bound by the agreement. In addition, the court has emphasized that the focus of such claims is on the Employee’s motivation for their decision to leave, and whether that motivation arises from a breach of the Employer’s duty, or some other factor.
The Authority Member had to consider whether there was a breach of duty by ACC, whether that breach of duty was sufficiently serious to indicate to Ms Clare Jeffries that ACC no longer intended to be bound by its agreement with her, and whether Ms Jeffries was in fact motivated to resign because of that breach.
The Authority Member took into consideration all the information provided to them during the Investigation Meeting and advised that ACC had not breach their duty as they had provided Ms Clare Jeffries an opportunity to provide alternative proposal to them within the letter provided to her on 1 February 2024.
The Authority Member also had to determine whether Ms Clare Jeffries was placed in an Unjustified Disadvantage and being Discriminated against by ACC, with the Member determining that neither of those claims were substantiated.
In order to ensure that the correct process is followed, please feel free to contact Russell Drake Consulting.