Personal Grievance - Dismissal - Redundancy - Employment Relations Act 2000
Lewis v Stonex Systems Ltd
30 May 2007, D King, AA 162/07, (11 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant shareholder and executive director of respondent - Involved in establishment of respondent and subsequently employed by it - No employment agreement or job description - Working relationship with other director strained - Other director claimed had to take on applicant's responsibilities - Respondent's Board considered restructuring - Applicant wrote suggested job description for himself as Sales and Marketing Director - However, other shareholders met independently and considered applicant's position should be disestablished and replaced with specialist roles - Proposal document contained comments adverse to applicant but he was not shown it or given opportunity to comment - Applicant sought meeting with Board to express concerns - Before he spoke, given letter advising him of proposed restructuring and redundancy - Felt stunned and that opportunity to say anything gone - Respondent could not explain why applicant not given chance to speak or advised purpose of meeting changed - Although applicant advised could apply for new roles, evident applying for senior marketing role would be futile - Submission decision to dismiss made without authority not accepted, formal Board resolution or shareholder approval not required - Difficulties between applicant and other director relevant to restructuring proposal and should have been disclosed to Board - If other director doing as many of applicant's duties as claimed, then his position also being restructured yet not required to reapply - Applicant's role and "new" position fundamentally same - Position had not disappeared - Respondent also submitted applicant did not have requisite skills - Performance issue disguised as redundancy - Redundancy not genuine and carried out in unfair manner - Dismissal unjustified - Remedies - Respondent opposed reinstatement based on lack of skills - Because matter treated as redundancy Authority in no position to judge applicant's skill level, and neither was company - Applicant to be reinstated to position of Sales and Marketing Director with duties as set out in job description he prepared - Indicated open to reviewing role and Authority commented mediator could assist return to work - Director
Result:
Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc (Quantum to be determined) ; Costs reserved
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Rillstone v Product Sourcing International 2000 Ltd
7 Jun 2007, R Arthur, AA 167/07, (16 pages)
PRACTICE AND PROCEDURE - Authority concluded respondent waived privilege in legal advice from previous advisor by referring to content of advice in witness statements - Non-publication order made in relation to evidence of respondent's budgets and accounts - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Respondent claimed applicant accepted new position with different job content and lower salary, but chose to end her employment - Applicant told her position to be disestablished but would continue to be employed in sales role with lower salary but greater incentives - Later given notice of redundancy and told could apply for sales role - Applicant's evidence did not accept new role preferred - Whether redundancy genuine - Respondent faced genuine commercial pressures - However, new position not sufficiently different to break continuity of employment - Any requirement for change in direction or emphasis on sales well within express terms of applicant's employment agreement - Redundancy not genuine - Clear respondent considered really dealing with performance issues - Email from advisor suggested redundancy shorter process than performance management and simply having lower salary would make new role different, a view Authority considered inconsistent with established law - Employment agreement provided for redundancy where position superfluous to needs of employer, taken to refer to work to be done, not solely salary paid for it - Emphasis on reducing applicant's salary evident in respondent's evidence - Mixed motives for redundancy - Dealing with performance issues predominant purpose - Dismissal also procedurally unfair - Dismissal unjustified - Actions of respondent in purporting to make position redundant and seek applicant's acceptance of new position at lower salary amounted to failure to act in good faith and unjustified disadvantage - Remedies - Insufficient evidence to establish applicant entitled to bonus payment - Merchandiser
Result:
Application granted ; Reimbursement of lost wages ($32,307.69)(14 weeks) ; Compensation for lost benefit (Clothing allowance)($1,346.15) ; Compensation for humiliation etc ($5,000) ; Costs reserved
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Sharma v Medictronix New Zealand Ltd
18 Sep 2007, L Robinson, AA 291/07, (7 pages)
UNJUSTIFIED DISMISSAL - Redundancy - No appearance for respondent - Applicant's evidence unchallenged - Parties agreed applicant could take three months leave - Contrary to agreement, applicant not paid while on leave - On return told things at respondent "not good' and no staff paid - Respondent agreed to make some payment to applicant and said would contact him about resuming duties - Applicant not invited to resume duties - When contacted, respondent provided back dated advice making him redundant - Purported redundancy a sham - No consultation - Breached employment agreement and statutory requirement of good faith - Dismissal unjustified - ARREARS OF WAGES - Applicant entitled to commission not paid during employment - Interest 10 percent - GOOD FAITH - PENALTY - Applicant sought penalty for respondent's failure to act in good faith - Respondent had instilled in applicant expectation would resume duties - Attempted to revise situation by making him redundant from commencement of discussions with him - Conduct demonstratively dishonest, in bad faith, and undermined applicant's employment agreement - Penalty warranted to underscore policy objectives of Employment Relations Act 2000 and denounce respondent's conduct - Sales and marketing manager
Result:
Application granted ; Reimbursement of lost wages ($6,057.70) ; Compensation for humiliation etc ($8,000) ; Arrears of wages ($10,451.36) ; Interest (10%) ; Penalty ($3,000)(Payable to Crown) ; No order for costs
