Workplace Dispute not Constructive Dismissal

An employee who alleged his manager was hostile and aggressive, and that this behaviour led to his resignation, has had his claim of constructive dismissal denied by the Employment Relations Authority.

Mr Bosman was employed as a Branch Manager for a construction hire business, Total Access Ltd and he was unhappy that his Manager, Mr Kraan, sent him a text message on his work phone one Sunday.

Mr Bosman said he found it “rude” that Mr Kraan would send him a text about work on a Sunday. Mr Kraan, however, had not expected Mr Bosman to do anything with the text that day. The two met on Monday morning to discuss the matter, however, the meeting became heated with Mr Kraan telling Mr Bosman his attitude “sucked” and “you’re finished”. According to a witness, Mr Bosman gave as good as he got, “goading” Mr Kraan.

Mr Bosman secretly recorded the incident on his phone which the Authority later disregarded because of concerns of an expert witness as to some aspects of the recording. It was also noted by the Authority that Mr Bosman did not tell his employers and directors of the business, Mr and Mrs Chambers, at any one of several meetings following his resignation about the recording thereby breaching his good faith obligation to his employer.

Prior to handing in his resignation letter, Mr Bosman “reset” his work phone to remove personal data, however, the reset had the effect of deleting everything from the phone. He also copied work emails that he believed demonstrated unfair treatment towards him to a USB drive prior to resigning.

There was no mention of suffering abuse or bullying in Mr Bosman’s resignation letter to Mr and Mrs Chambers.

The Authority accepted Total Hire’s submission that the Monday morning incident was a one-off incident. There was evidence that Mr Bosman and Mr Kraan had previously had a positive working relationship. There was no evidence the directors were acting in concert with Mr Kraan to follow a course of action designed to force Mr Bosman to resign and that they had asked Mr Bosman to reconsider his resignation after a ‘cooling down’ period. The Authority said Mr Kraan did not have the authority to ‘send away’, that is, dismiss, Mr Bosman. Therefore, the words “you’re finished” did not amount to dismissal.

By resigning, Mr Bosman gave his employer no opportunity to investigate the issues of the Monday morning meeting and the Authority said “the consequences of that decision are for him to bear.”

This case underlines the fundamental obligation of good faith in an employment relationship which is incumbent not only on the employer but also the employee. Covertly recording a meeting, wiping the company phone and not giving the employer an opportunity to investigate an incident were all contradictory to the employee’s good faith obligations.