Fracas about text is not constructive dismissal, ERA rules

A man who left his job after a fracas about a text on his day off has failed to prove that he was constructively dismissed.

Total Access Limited was, however, ordered by the Employment Relations Authority (ERA) to pay its former employee, Neil Bosman, a $3500 penalty for failing to pay him for holidays owing and $550 in unpaid wages.

Bosman was employed as a branch manager for the construction hire business.

According to the ERA’s decision, the events that gave rise to the dispute occurred on October 19, 2015.

Bosman said he had been working in his backyard with his wife when he received a text message from Total Access general manager Nick Kraan.

The message contained just a photo of a work-site with a company name on it. Bosman took this to mean that Kraan wanted him to contact the company for potential work.

He told the ERA that he was already stressed about Kraan’s attitude towards him and he found it “rude” that Kraan would send him this text on a Sunday.

Bosman replied: “Don’t send me that on the weekends please Nick. Monday Mornings are good for this.”

Kraan told the ERA he was quite taken aback by this response and cited examples of other work-related and personal communications between the pair.

He replied to Bosman: “I’ll send it to Steve instead. Sharing a possible lead.”

Kraan then scheduled a catch-up between the two men on Monday morning.

Bosman replied: “Yes but weekend is personal time you could have shared that lead on Monday. Don’t be petty, of course I’ll follow the lead. I’m going to enjoy my day with my wife and dog and if you want to catch up tomorrow, then I’ll make that my concern tomorrow.” Kraan responded that there was no need for him to reply that day: “Txting has a park and save benefit. Think Attitude!!!.” The events of the meeting the f oll owing day are much disputed. Bosman told the ERA that Kraan was aggressive and told him his attitude “sucked” and said he would be “micromanaged”. He said Kraan swore at him and stated “you’re finished”. Bosman said the meeting was becoming too heated so he decided to leave, when Kraan assaulted him by shoving him in the back. Kraan agreed that he told Bosman that his attitude “sucked” and that he said “you’re finished”. However, he said he did this in the context that he believed Bosman had finished expressing his views. He also claimed Bosman swore at him.

Kraan denied assaulting Bosman, stating that he had placed a hand on his shoulder to “get his attention to come back into [his] office”.

“Mr Kraan said it was at this point that Mr Bosman started shouting and accusing him of assault,” the ERA decision said.

ERA member Andrew Dallas did not agree with Bosman’s claim of assault and failed to see how the events amounted to a constructive dismissal.

“Ultimately, Mr Bosman resigned from Total Access of his own free will. He may have done so in difficult or heightened circumstances, and prematurely, that is, in the absence of an investigation into the events of 19 October 2015, but the consequences of that decision are for him to bear.”

The ERA upheld Bosman’s claims for unpaid holiday pay. It dismissed Total Access’ counter-claims against Bosman, including that he took confidential information on his final day of work.