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Cornish v Scots College Inc
5 Mar 2008, G J Wood, WA 25/08, (16 pages)
UNJUSTIFIED DISADVANTAGE - Redundancy - Applicant both deputy principal ("DP") of prep school and director of boarding ("DB") - Applicant provided accommodation at school boarding house with family on full board basis - Respondent decided to implement seven day boarding - Applicant and Headmaster ("Y") developed crisis plan where students would stay at boarding house during weekend - Applicant already overworked and crisis plan created additional work for staff - Applicant concerned other staff not pulling weight at boarding house yet given reduced teaching responsibilities upon request - Principal of prep school ("P") not prepared to allow applicant to relinquish one class because felt would distance applicant from day-to-day life of students - Y met with applicant who claimed stressed and unable to cope - Y told applicant present role too big for one person and could be two positions - Upon return from leave applicant confirmed preferred DB position - Y provided applicant with draft job descriptions - Y offered applicant choice to either remain at boarding school as teacher or shift accommodation and remain DP - Neither option suitable to applicant - Y implemented formal restructuring proposal as no resolution through informal process - Y proposed to disestablish applicant's position and replace with two positions - Applicant provided feedback that could continue in both jobs to high standard - Y considered feedback but decided to continue restructuring - Y required applicant to apply for new positions - Applicant argued consultation process a sham as decision to restructure relayed immediately to staff - Applicant did not initially apply for new positions as believed would be approval of restructuring - Applicant believed entitled to stay in existing position - Applicant applied for new positions on without prejudice basis - Following interviews respondent confirmed applicant best candidate for DP position but better candidate found for DB position - Applicant claimed only interested in DP position because no other choice - Applicant concerned lost substantial benefits that came with DB position - Respondent withdrew offer of DP position following unsuccessful mediation - Following investigation of alternative employment options respondent confirmed applicant's redundancy - Authority discussed applicability of legal principles in leading judgments on redundancy law - Authority found respondent had good reasons to split applicant's position into two and acted as reasonable employer - Authority found appropriate to advertise position and not required to offer to applicant as of right - Authority satisfied genuine consultation held with applicant - Dismissal justified - Authority found unfair action by respondent to effectively require personal grievance be linked with applicant's acceptance of DP position - Authority found breach of good faith by denying applicant opportunity to take up DP position until personal grievance addressed in private - Disadvantage established as applicant pressured to resolve personal grievance - Remedies - Compensation limited to unfair way applicant treated taking into account result would not have been different - $2,500 compensation appropriate - Deputy principal operations & Director of boarding
Result: Application granted (Disadvantage) ; Application dismissed (Dismissal) ; Compensation for humiliation etc ($2,500) ; Costs reserved
Davison v HP Packaging (New Zealand) Ltd
17 Mar 2008, L Robinson, AA 96/08, (15 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Extensive conflicts in evidence as to circumstances of dismissal - Authority found applicant not told at start of first meeting that redundant, but that redundancy raised as issue - At second meeting, parties discussed alternative options to redundancy, including alternative position - Further communications followed - Respondent sent dismissal letter - Authority found dire position suggested by fact 60 employees redundant in 18 months prior to applicant's dismissal - Found respondent began restructuring when purchased business - Authority accepted business efficiency required restructuring - Respondent argued all staff put on notice of large scale redundancies - Authority found full and real consultation critical aspect of good faith - Authority found consultation flawed as review of applicant's area not specifically put to applicant, applicant given insufficient notice of first meeting and not advised of salary of alternative position in sufficient time to consider options - Authority accepted five positions in applicant's area genuinely redundant - Authority found respondent did not sufficiently express to applicant precise justification for disestablishing applicant's position as opposed to any other from applicant's area - No evidence to Authority of reason applicant chosen or of objective selection criteria or selection process leading to applicant's selection for redundancy - Authority found restructuring genuine, but not persuaded applicant's particular employment redundant relative to other positions in area - Position not genuinely redundant - Dismissal unjustified - REMEDIES - Applicant awarded lost wages from date of termination until found new employment - Applicant entitled to compensation for effects of unlawful termination, not for loss of job itself - Authority considered length of service with respondent and predecessor twenty years and that was only job applicant had since leaving school - Also exacerbated by dismissal during Christmas season and as applicant had large family and pregnant wife - Single stage process engineer
Result: Application granted ; Reimbursement of lost wages ($22,129.42)(17 weeks) ; Compensation for humiliation etc ($9,000) ; Costs reserved
Johnson v Gilligan Business School Ltd
28 Feb 2008, A Dumbleton, AA 66/08, (8 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed redundancy substantially and procedurally unjustified - No dispute applicant's employment ended by dismissal - Authority noted could only look at cost saving steps taken by respondent to be satisfied respondent exercised business judgement and no ulterior motives - Respondent a small business run by husband and wife with applicant only full time employee - Applicant accepted dismissal no reflection on performance - Authority found objective of applicant's termination to save costs - Authority found several options for trying to save costs but ultimately decision with respondent as to preferable option - Found respondent's decision understandable as evident business declining despite efforts of applicant - Authority found applicant adequately consulted - Applicant's suggestion to reduce number of working days considered but ultimately rejected - Authority found given small operating budget significant financial strain when applicant employed - Respondent raised prospect of redundancy followed by personal letter which gave opportunity for comment - Authority found respondent carefully considered applicants view and made decision to dismiss - Found respondent's approach to redundancy fair and reasonable - Applicant also claimed respondent breached good faith provisions by failing to provide information used to make dismissal decision - Authority satisfied nothing of substance withheld from applicant - Authority found no obligation on respondent to give prior notice to applicant before raising possibility of redundancy - Applicant produced documents suggesting redundancy be delayed - Authority found documents had no bearing on case as not before respondent when redundancy decision made - Found dismissal compelled by genuine commercial reasons and implemented in fair manner given limited scale of business and resources - Dismissal justified - Sales and Marketing Manager
Result: Application dismissed ; No costs awarded
Wright v Hevila Pak Ltd
11 Mar 2008, R A Monaghan, AA 86/08, (8 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Abandonment - Applicant claimed redundancy engineered to get rid of applicant due to conflict between applicant and chairman of board of directors ("F") - Respondent argued applicant abandoned employment - F advised staff in individual letters that business not performing well, was reviewing operations and would arrange individual meetings - Applicant advised F did not wish to attend meeting - Applicant attended later meeting with F to discuss outcome of review - F advised would recommend at AGM that applicant's position be made redundant - Applicant responded "good luck" - Applicant present at AGM where meeting resolved to recommend to respondent's board that applicant's position redundant - Applicant asked if that meant he no longer had job - F replied "probably" but another shareholder replied not final decision - Applicant began preparing to leave workplace - Authority preferred F's evidence that F explained that applicant still employee and expected to carry out work until board made decision on redundancy - Applicant left, not attending final meeting when decision to discontinue position finally made - Authority had reservations about F's approach, but accepted valid reasons for considering future of applicant's position - Found applicant's response to F's attempted review unwise and not in own best interests - Found outcome of AGM not applicant's dismissal - Position remained until directors resolved to discontinue it - Found unclear what final outcome would have been because applicant pre-empted any action and consultation about future employment options - Found departure too premature to allow finding that treatment was such that applicant entitled to reach conclusion that was dismissed - Applicant's departure pre-empted any termination that may have been imposed after director's meeting and subsequent consultation with applicant - Therefore no issue of justification arose - No dismissal - BREACH OF CONTRACT - PENALTY - Counterclaim - Respondent argued applicant breached employment agreement ("EA") by failing to give reasonable notice period and carry out duties while EA remained in force - Respondent sought penalty for breaches - Authority found applicant breached EA in failing to provide notice of termination as was obliged to - Authority declined to exercise discretion to award penalty - Found applicant already penalised by losing employment - Penalty declined - Operations manager
Result: Application dismissed (dismissal) ; Application granted (breach of contract)(counterclaim) ; Application dismissed (penalty)(counterclaim) ; Costs reserved
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