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Lambert v Ericsson Communications Ltd
9 Aug 2006, GJ Wood, WA 113/06, (10 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant put on fixed term assignment in Malaysia - While on assignment offered position with respondent's Swedish division only if respondent agreed to extend applicant's assignment, or applicant took position locally in Sweden - Respondent declined to extend assignment - Applicant did not accept local position - Made redundant and paid in lieu of notice - Authority found redundancy information only by email and phone contact sufficient in circumstances - However, not open to pay in lieu of notice, as no provision for it in employment agreement - Unreasonable notice - Unjustified disadvantage - Open to respondent to refuse assignment extension - Treated applicant as fair and reasonable employer would have while effecting dismissal - Redundancy inevitable - Dismissal justified - Remedies - Actions in relation to payment in lieu had no negative impact on applicant, only hurt was lost remuneration - PENALTY - Claimed misled about assignment policies in breach of good faith - Applicant not misled - No breach - In any event, any breach not sustained or intended to undermine employment agreement - ARREARS OF WAGES AND HOLIDAY PAY - Claimed should have been paid redundancy compensation and holiday pay at level of assignment salary - For purpose of redundancy termination was open to respondent, and was fair and reasonable, to set salary upon repatriation at level based on position prior to assignment - However, holiday pay to be calculated on Malaysian assignment salary in accordance with Holidays Act 2003 - Interest 6 percent - Length of service five years - Information systems manager
Result: Application dismissed (Unjustified dismissal, penalty) ; Application granted (Unjustified disadvantage) ; Arrears of wages (notice period) ; Arrears of holiday pay (Quantum to be determined) ; Interest (6 percent) ; Costs reserved
Palmer v RNJ's Ltd
8 Nov 2006, V Campbell, AA 342/06, (6 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Redundancy - Respondent's new business experienced real and significant downturn - After consultation, fair and reasonable employer would have concluded necessary to disestablish applicant's position and replace it with position with reduced hours - Applicant given letter with two options, accept reduced hours and work alone, or redundancy - Respondent had no problem with shop being closed for breaks - Applicant concerned if worked alone would work 40 hour week without breaks, but issue not raised with respondent - Respondent claimed prepared to discuss matter but applicant led him to believe letter not opened - Applicant left with impression had been advised of changes rather than consulted - Failure to discuss alternatives to redundancy, provide further information regarding required reductions, or give opportunity to discuss matter breached applicant's employment agreement and s4 Employment Relations Act 2000 - Genuine redundancy so was unjustified disadvantage, not unjustified dismissal - Remedies - Applicant did not take opportunity to discuss letter with respondent, but was not conduct that contributed to personal grievance - Although neither party represented at investigation meeting, correspondence indicated applicant had received legal advice - Length of service three months one week - Manager
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($2,500) ; Costs reserved
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