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McGregor v Mobil Oil New Zealand Ltd
2 May 2007, D Asher, WA 69/07, (8 pages)
UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE - Redundancy - During employment applicant took extensive paid sick leave – While on leave advised respondent proposed restructuring that would see operations shifting to Bangkok - Also claimed advised work had been redistributed to other team members and job "gone" - On return applicant required to do project work - Presented with fait accompli and left with little option but to accept work - Postponement of project resulted in redundancy of applicant's position - Advised redundant unless another position could be found - Efforts to redeploy unsuccessful - Applicant properly did not contest substantive genuineness of redundancy but rather when it should have occurred - Claimed respondent’s actions caused her to go on further sick leave until date of redundancy - Given extent of applicant's absences, not unreasonable for respondent to redistribute work - However, it failed to take account of consequences of redistribution when project postponed - Also breached undertaking to give at least two months notice prior to redundancy - No evidence respondent set out to deliberately mislead or deceive applicant - Election and implementation of redundancy decision made without consultation - Unjustifiably disadvantaged and dismissed as result of failure to consult at time elected to postpone project - Election resulted in unilateral decision to terminate - Failure to consult was significant breach of s4(1A)(c) Employment Relations Act 2000 - Dismissal unjustified - Remedies - Applicant claimed medical problems attributable to respondent's actions - Sought medical costs - No reliable evidence actions responsible and sick leave taken for other reasons - Respondent not totally liable for applicant's inability to work and loss of earnings - Not certain applicant's employment would have continued had fair process been followed - Applicant to receive three month lost wages inclusive of additional one month's notice - Accounts clerk
Result: Application granted ; Reimbursement of lost wages (3 weeks)(Quantum to be determined) ; Compensation for humiliation etc ($8,000) ; Leave reserved to return to Authority to determine quantum of lost wages ; Costs reserved
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