Previous Section | Table of Contents | Next Section
Charles v Waitakere City Council and Anor
19 Nov 2007, R Arthur, AA 362/07, (21 pages)
UNJUSTIFIED DISADVANTAGE – First respondent (“WC”) contracted to provide dog control services to second respondent (“NSC”) – Applicant employed on fixed term to provide services to NSC – NSC expressed concern about applicant’s performance to WC several times - Allegations not put to applicant and she was unaware NSC considering invoking clause in contract to remove her from duties – Clause subsequently invoked and WC attempted to transfer applicant to duties at WC for remainder of fixed term – Applicant raised grievance and did not return to work – Applicant entitled to know, and have opportunity to comment on, allegations and possibility removal clause would be invoked – Also entitled to opportunity to improve work practices – WC breached trust and confidence, and statutory duty of good faith to be active and communicative – Also breached duty not to act in way likely to mislead or deceive when advised applicant of NSC’s demand and transfer – No contractual basis for transfer - Unjustified disadvantage – Remedies – Applicant remained employed on unpaid sick leave – Entitled to wages lost immediately following removal from NSC position – Could have expected to be stood down on full pay while consulted about alternative arrangements – Reasonable period four weeks as did not mitigate loss – Contributory conduct 25 percent - PENALTY – Applicant alleged NSC aided and abetted WC’s breach of employment agreement – Not open to Authority to consider NSC’s commercial decision to invoke removal clause – Whether contract between respondents structured and applied to avoid employee’s rights important question of policy within Authority’s role and powers in equity and conscience – Removal clauses inconsistent with employment statutory regime – No evidence removal clause operated by NSC in calculated way to help WC avoid obligations – No penalty – Dog control officer
Result: Application granted (Disadvantage) ; Reimbursement of lost wages (4 weeks reduced to 3) ; Compensation for humiliation etc ($10,000 reduced to $7,500) ; Application dismissed (Penalty) ; Costs reserved
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
Previous Section | Table of Contents | Next Section
