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Currie v McVicar Timber Group Ltd
5 Dec 2006, R Arthur, CA 168/06, (8 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - BREACH OF CONTRACT - Redundancy - Applicant claimed redundancy unjustified and unjustifiably disadvantaged - Claimed respondent breached obligation to negotiate terms and conditions of redundancy - Terms and conditions based on collective employment agreement ("CEA") - Individual employment agreement ("IEA") included all relevent terms of CEA - No redundancy compensation provision in IEA - CEA provided four weeks notice and negotiation of terms and conditions of redundancy - Applicant claimed offered new postion in Australia - Authority found prospect of new position still inquiry with no definitive elements of offer - Applicant advised position to become redundant - Refused "take it or leave it" cash settlement - Took stress leave - Respondent continued formal consultation process - No real challenge by applicant as to whether respondent genuinely considered restructuring needed - Making applicants position redundant better cost-saver than reducing other positions - Authority found some attention to procedural requirements, however, start of process unfair - Applicant unlikely to have anticipated vulnerability to job and believed future secure, because of job possibility in Australia - Respondent rejected applicants attempts to revive settlement offer, but did little or nothing to discuss how redundancy would be handled - Fair and sensitive employer would have discussed options with applicant - Instead, respondent imposed notice period paid in lieu and termination date one day after dismissal - Disputed clause created contractual right that terms and conditions of redundancy shall be negotiated - Authority could not determine what terms should have been agreed - IEA provided parties to ascertain amount of payment by negotiation - Clause created legally enforceable right to negotiate on range of items or matters - Once settlement offer lapsed, respondent closed its mind to consideration of other terms and conditions of redundancy, which was obliged to at least discuss - Obligation to negotiate breached - Unjustified disadvantage - REMEDIES - Breach denied applicant opportunity to secure more favourable outcome - Real and substantial chance respondent approaching issue with open mind would have agreed to redundancy on terms better than four weeks notice, but below full measure of compensation in settlement offer - Value of lost opportunity would have at least been extended notice period - 12 weeks notice appropriate - Length of service 30 years - Sawmill manager
Result: Application granted (Unjustified disadvantage) ; Loss of benefit (12 weeks notice) ; Compensation for humiliation etc ($5000) ; Costs reserved
Garas-Endrawis v Albany Food Warehouse Ltd
23 Nov 2006, R Monaghan, AA 354/06, (9 pages)
UNJUSTIFIED DISMISSAL - Alleged actual or constructive dismissal - Applicant injured back at work - Matter referred to ACC - Medical certificate stated applicant not fit for heavy lifting - No light duties available - Applicant sent home - No dismissal at this time, open ended nature of absence not unknown in employment law and respondent should have been advised of progress - However ACC concluded employment had ended - Applicant found out employee number assigned to someone else and concluded employment terminated - Respondent to clarify matter - Received indication that employment terminated - Should have contacted employer, not ACC - Acquiesence by applicant considered by respondent that employment abandoned - Authority concluded circumstances amounted to combination of misunderstanding and miscommunication, but no dismissal - Matter transferred to business services manager ("KP") - Applicant informed that still a staff member and still on payroll - Applicant indicated would not be able to do checkout job - Applicant would not accept alternative employment at position of lower level than what she was qualified for - Applicant failed to distinguish between wider vacancies that ACC recommended and work respondent might offer in interests of continuing her employment - Applicant not entitled to expect kind of work that was being explored by ACC - Applicant told if could not work as checkout operator then should resign - Letter sent to applicant requesting confirmation of termination - Applicant confirmed position should be terminated - Overall, circumstances amounted to termination by consensus - No dismissal - UNJUSTIFIED DISADVANTAGE - Changes to hours made by agreement - No unjustified disadvantage - ARREARS OF WAGES AND HOLIDAY PAY - Claim for unpaid holidays dismissed - No need for notice since termination by consensus - Length of service 15 months - Checkout assistant
Result: Application dismissed ; Costs reserved
Iles v Dry Run Holdings Ltd
27 Oct 2006, GJ Wood, WA 147/06, (4 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Respondent registered in New Zealand but run in Australia - Signed employment agreement stated relationship between applicant and franchise trading name PH - Respondent employer at time of termination - Clearly breach of good faith and likely to be misleading if employer failed to describe actual name of employer - PH sold to D - Representatives of D arrived at applicant's store and told staff store closing in two days, and could apply for jobs with D - PH did not contact staff to explain what would happen or give notice - Respondent's director claimed sale and purchase agreement had condition D would take over responsibility for employees on sale, and sale confidential - No evidence provided of agreement - Trite law employer could not transfer employees to new employer without specific approval - Such approval not sought or gained in this case - Would not have been productive to direct mediation - Applicant's dismissal was effect of sale of franchise - Positions offered by D all significant distance away store - Applicant acted reasonably in declining to apply for position - Failed to consult in redundancy situation and pay notice - Unjustified disadvantage - Genuine redundancy as whole business sold - Dismissal justified - Remedies - Compensated for failure to consult and give notice - ARREARS OF WAGES - Applicant not paid final week's wages or payment in lieu of notice - Should have been given two weeks notice - Wages due and owing - COSTS - Applicant assisted by community law centre - Length of investigation meeting not specified - Filing fee only expense incurred - Respondent to reimburse filing fee - Length of service five years four months - Fast food worker
Result: Application granted (Unjustified disadvantage, arrears of wages) ; Application dismissed (Unjustified dismissal) ; Arrears of wages ($840) ; Compensation for humiliation etc ($3,500) ; Disbursements in favour of applicant ($70)(Filing fee)
Van Leeuwen v Canterbury District Health Board
22 Nov 2006, J Crichton, CA 160/06, (9 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Alleged respondent failed to act when bullied and harassed by co-worker - Applicant never formally complained about co-worker, despite being asked - HR adviser worked with both employees and viewed problem as personality conflict - Applicant encouraged to take time off because faced external pressures, as well as work difficulties - Went on sick leave and effectively never returned - Authority satisfied respondent did not suggest applicant resign or try to force him out of position - Applicant interested in returning when co-worker resigned - Original position changed, so offered alternative roles - Parties attended mediation on issue of returning but it remained unresolved - Evidence did not support categorisation of events as bullying or meet definition in respondent's policy - Unsatisfactory personal relationship between co-workers could not constitute bullying in a legal sense - Co-worker regarded herself as victim of bullying because of applicant's regular complaints - Refusal to lodge formal complaint went against wish to categorise problem as bullying - Within framework of informal complaint process chosen by applicant, respondent did all reasonably could to address his concerns - Authority's only concern was perhaps respondent did not make consequences of not making formal complaint as abundantly clear as might have been appropriate - Clear reasons, related to natural justice, formal investigation into co-worker's behaviour could not take place without formal complaint - Evidence strongly suggested applicant resigned after reading medical report stating fit to return to work with conditions - Authority of view he acted prematurely and denied respondent opportunity to work with him to resolve issue - Effectively confirmed decision by refusing to meet with respondent - No unjustified disadvantage - No constructive dismissal - Length of service two years five months - Occupational therapy instructor
Result: Application dismissed ; Costs reserved
Wall v Strategic Health Ltd
23 Nov 2006, PR Stapp, WA 165/06, (9 pages)
UNJUSTIFIED DISMISSAL - Applicant had two roles with respondent ("SHL") - Second role on premises controlled by another company ("CCT") - Employment consolidated with SHL - Applicant took time off work due to injury - Cleared to return to work, however, respondent wanted second opinion as to applicant's condition - Applicant dismissed before second opinion obtained - Respondent concerned applicant put CCT at risk under Health and Safety in Employment Act 1992 - Applicant advised that respondent wanted to consult on restructuring proposal regarding roles at SHL and CCT - Respondent raised concerns about applicant's performance and conduct which amounted to final warning - No response from respondent when applicant requested to discuss proposal - No appearance by respondent - Respondent failed to reasonably provide documents required for Authority investigation - Authority found SHL deliberately did not co-operate with Authority investigation - Inactions seen as wilful and contemptuous of Authority - Respondent not proactive in making arrangements for mediation prior to investigation meeting - Directors of both companies acting in concert - Overlap of directors involvement in both companies suggested raising of redundancy was way to get around problem - Restructure not genuine - Dismissal unjustified - ARREARS OF WAGES AND HOLIDAY PAY - Applicant's claim for unauthorised deductions not a personal grievance matter - Claim an enforcement matter - However, claim not established by applicant - Arrears of holiday pay due and owing - COSTS - 85 percent as reasonable contribution by respondent - Appropriate given lack of co-operation by respondent
Result: Application granted (Unjustified dismissal) ; Application dismissed (Arrears of wages) Reimbursement of lost wages ($4,888) ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay ($1,244.48) ; Costs in favour of applicant ($2,541.50) ; Disbursements (Filing fee)($70)
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