ERA win for Nelson worker despite settlement

By Ben Chapman-Smith

A man has won his case to proceed with a personal grievance claim against ITM in Nelson. Photo / Ross Setford
A man has won his case to proceed with a personal grievance claim against ITM in Nelson. Photo / Ross Setford

A man told he told he would never work for an ITM franchise again after he quit to work for a competitor has won his right to take up a personal grievance claim despite signing a settlement agreement.

Douglas Evans was working for Building Connexion Ltd in Nelson, trading as ITM, when he had to take sick leave in 2011 due to a non-work-related injury to his back.

He returned to work but resigned on July 4, 2011 giving the required four weeks' notice.

When asked by his manager where he was going, Evans said he was intending to work for one of the store's main competitors.

The Employment Relations Authority (ERA) heard this caused his employer "some anxiety" because Evans' role as a frame and trusses detailer involved commercially sensitive information which could be passed on to the competitor.

Building Connexion decided Evans should do other work at the store which did not involve the pricing of building components but this was difficult due to Evans' back problem.

Problems finding appropriate work resulted in a meeting on July 5, in which Evans signed an agreement to serve out only two weeks' notice and be paid for leave owing.

But he later told the ERA he felt pressured in the meeting, was not given a chance to seek legal advice, and was told he would not receive holiday pay unless he signed the agreement.

He said his bosses had not offered him any work he could do and that they would not pay him his one month's notice.

Evans also told the ERA that during the meeting, a director of the company called Rodney Woolfe said he "would see to it" that Evans would never work for an ITM franchise in New Zealand.

Woolfe allegedly said he would not give him a reference.

Evans went to the ERA to raise a personal grievance against ITM that he had been harassed in the workplace and that his employment agreement had been breached.

Building Connexion, apart from denying the allegations, said Evans had no right to raise a personal grievance because he had signed the settlement agreement.

Evans said when he signed the agreement, he had no idea it meant he could not later raise a personal grievance.

ERA member David Appleton agreed.

"I do not believe therefore that there had been a meeting of minds to the extent that Mr Evans intended all of his employment rights to be extinguished in return for 2 weeks' pay when he signed the agreement," he said.

Appleton also said in his determination that Evans was given less than two hours' notice of the meeting and was not given the chance to seek legal advice on the wording of the agreement.

"Accordingly, I find that Mr Evans is permitted to continue his claim of constructive dismissal against the respondent."

A date will now be set for the case to progress, Appleton ruled.

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