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Glen v Modern Teaching Aids (NZ) Ltd
3 Aug 2006, J Crichton, CA 115/06, (10 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Employment agreement
specified six month probationary period and one week notice period - Notice
period one month on completion of probation - Respondent based in Australia -
Applicant advised in telephone discussion redundant with immediate effect -
Dispute over discussion and notice period - Question fundamentally about
consultation - Short telephone discussion only "consultation"
before redundancy - Preferred applicant's recollection - Even if preferred
respondent's would have had no difficulty concluding consultation so inadequate
as to make decision to terminate unfair - Appearance of pre-determination - Such
peremptory consultation could not comply with good faith obligations - Even if
applicant could not be redeployed employer acting in good faith would have been
prepared to be flexible as to matters such as notice - Applicant produced letter
apparently written by superior ending probationary period and confirming
permanent employment - Respondent disputed authenticity of letter and superior's
authority to end probationary period early - Claimed letter hearsay -Superior
not available to give evidence, but his direct evidence would have been
admissible - Authority's equity and good conscience jurisdiction also allowed
letter as evidence if assisted investigation - Likely letter originated from
superior - Applicant reasonably believed it represented respondent's views -
Doctrine of undisclosed principal applied entitling applicant to believe
probationary period ended - On balance of probabilities belief reasonable -
Respondent bound by letter - Unjustified dismissal - ARREARS OF WAGES - Notice
period one month - Arrears due and owing - PENALTY - Respondent's actions not
sufficiently extreme - Length of service five months - Sales
representative
Result: Application granted ; Compensation for humiliation etc ($3,000) ; Reimbursement of lost wages ($2,537.54) ; Arrears of wages ($2,812.50)(notice) ; Costs reserved
Round v Just Kids Ltd
15 Aug 2006, YS Oldfield, AA 266/06, (7 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant responsible for
maintenance of respondent's stores nationwide - Applicant told respondent
considering outsourcing maintenance work - By end of meeting applicant on notice
position under review - Attended further meeting and asked respondent for
breakdown of costings for position - Applicant agreed would provide list of
tasks performed in current position - Neither party provided those to each other
- Manager independently obtained list - Manager promised further discussion of
redundancy - At final meeting applicant given redundancy letter - Authority
accepted maintenance work did not amount to full time role - No evidence of
ulterior motives for review of applicant's position - Genuine redundancy -
Unacceptable respondent took notice of termination to final meeting after
promising further discussion - Further discussion may not have averted
termination but would have assisted applicant's understanding and alleviated
stress - Failed to provide breakdown of costings and opportunity to respond to
it - Unjustified dismissal - ARREARS OF WAGES - Applicant claimed owed payment
for days in lieu - Received paid sick leave in excess of entitlement in final
days of employment - Respondent justified in treating final days as time in
lieu, however should have notified applicant - No money owing - Length of
service one year 11 months -
Handyman/carpenter
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($4,000) ; Application dismissed (Arrears of wages) ; Costs reserved
Thompson v HJ Cooper Ltd
11 Aug 2006, J Wilson, AA 264/06, (6 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant called to meeting
and handed letter making him redundant - Alleged redundancy not genuine and
procedurally unfair - No consultation - Respondent adamant financial position
made changes imperative and performance issues had no bearing on decision -
Argued restructuring and creating redundancies part of managerial prerogative -
Applicant did not accept financial situation as dire as claimed - Alternatively,
argued even if was, respondent had sufficient time for consultation as knew of
situation and redundancy before meeting - No evidence redundancies had to be
made in haste - Fair and reasonable employer, acting in good faith, would have
given employee opportunity to propose alternatives before decision - Applicant
entitled to courtesy of discussion regarding alternative positions and
consultation as to how transition out of respondent could be handled to minimise
stress and trauma - Merely indicating in letter of termination assistance
available not sufficient to fulfil obligations of fair and reasonable treatment
- Had respondent followed proper process of consultation would have been open to
it to conclude applicant's position should be disestablished - Genuine
redundancy - Procedurally unfair - Dismissal unjustified - Length of service one
year seven months - Production engineering
manager
Result: Application granted ; Compensation for humiliation etc ($12,500) ; Costs reserved
Wilkinson v Tait Electronics Ltd
10 Aug 2006, P Montgomery, CA 119/06, (6 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Whether redundancy genuine -
Applicant based in Singapore - Position disestablished when Singapore/Thailand
operation restructured - Alleged redundancy not genuine, no consultation and
respondent did not act in good faith - Respondent denied allegation no preamble
to restructuring - Contended restructuring decisions provisional or preliminary
in nature and were followed by efforts to establish process for engaging
affected staff - Applicant claimed Regional Manager ("RM") wanted
to relocate to Singapore under guise of correcting business when real motive was
to continue personal relationship - Operation's financial position ample
justification for review and establishing proposals to remedy situation - CEO
asked RM to realign Singapore office and made final restructuring decision -
Authority accepted CEO unaware of RM's hidden motivation - Redundancy justified
and based on genuine economic reasons - Disestablishment of applicant's role not
predetermined - Consultation about new structure but not about loss of position
- Deprived applicant of opportunity to perhaps avoid dismissal - Dismissal
unjustified - Remedies - Authority mindful of exemplary manner in which company
conducted itself following dismissal - Applicant sought compensation for
alterations made to rental home - Applicant took view would be employed for
three years, but employment agreement made clear subject to conditions - Also,
Authority's jurisdiction restricted to providing compensation only in terms of
s123 Employment Relations Act 2000 - Applicant elected to remain in Singapore -
Entitlement to repatriation allowance lapsed at expiry of notice period - Effect
of dismissal very significant, particularly as expatriate employee and recent
arrival of child - Humiliation occasioned by wife having to end parental leave
early also considered - Length of service one year - Country
Manager
Result: Application granted ; Compensation for humiliation etc ($15,000) ; Costs reserved
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