Alien invasion or constructive dismissal?

The Employment Relations Authority determined a peculiar case last year concerning plastic alien dolls (Counsell v Repco New Zealand).

The employee in this case worked as a sales person at Repco in Whakatane.  One day a sales representative from an automotive accessory store showed the employee a green blow-up plastic alien doll used in its promotions.  The employee was quite taken with the alien doll and the sales representative gave him two unpackaged aliens to keep.  The employee then ordered five alien dolls for the Repco store, to sell or give away as promotional items.  The aliens duly arrived at the store and within a few days another employee purchased four of the five aliens for his son.

The branch manager was later advised that there was a packaged alien in the employee’s personal work tray.  However, the alien then disappeared from the employee’s work tray and could not be located and the stock inventory showed that only four aliens had been sold.  The branch manager make inquiries into the missing alien with the duty manager, another employee and the sales representative, and determined that it had last been seen in the employee’s tray.  While the alien doll was not expensive (costing $2.60), the branch manager was concerned that the employee appeared to have taken property without following a proper process.

The employee was asked to attend an investigation meeting.  At that meeting the employee accused the branch manager of being “a f***ing liar” and that Repco was “full of f***ing liars”.  At the end of the meeting the employee was informed that he would be issued with a final warning (he had earlier received a warning for previous misconduct).  The final warning letter stated that there was a disconnect between the information gathered by the branch manager regarding the missing alien and the employee’s version of events.  On the balance of probabilities, the employee was found to have provided false declarations during the investigation and disciplinary meeting, resulting in a loss of trust and confidence in him.

The employee said that when he returned to work after the investigation meeting that none of the other employee spoke to him, that he felt shut out and uncomfortable, and that it was “impossible to continue working at Repco”.  He provided a medical certificate saying that he was medically unfit for work and then resigned via a letter from his solicitor, which referred to the final warning and raised a personal grievance.  The employee claimed, amongst other things, that he had been unjustifiably constructively dismissed.  A constructive dismissal can arise where an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work so intolerable for the employee that they cannot remain in the job.  The Authority found that the employee’s resignation in this case did not amount to a constructive dismissal, as his resignation was a voluntary action on his part and was not brought about by any unjustifiable action by his employer.

As far as we know, the missing alien has never been found …

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