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Chew v Aslan Consulting Group Ltd and Ors
5 Oct 2007, H Doyle, CA 3A/07, (34 pages)
GOOD FAITH - Applicant employed by first respondent (“A”) - A sold business to second respondent (“T”) - T offered applicant employment - Applicant commenced employment with T but did not accept terms and conditions of employment - Applicant alleged A breached s4 and s60 Employment Relations Act 2000 (“ERA”) in salary negotiations prior to sale of business to T - Authority found no satisfactory evidence to conclude A acted in bad faith during salary negotiations - Applicant alleged A breached provisions of s69M ERA - A required to have employee protection provision in every individual employment agreement (“IEA”) entered into after 1 December 2004 - Authority found provision satisfied requirements of ERA - In final submissions applicant also alleged breaches of s69N ERA and s69O ERA - Authority found no breach of ERA - Application dismissed - BREACH OF CONTRACT - Clause in applicant’s contract required consultation about proposed sale of business - Applicant told about sale, and meetings held - Authority found A adequately consulted with applicant, except on whether redundancy compensation payable if applicant did not transfer to T - Authority found applicant’s position with A redundant - Found no entitlement to redundancy compensation in IEA except for four weeks’ notice in writing or payment in lieu of notice - Authority ordered A to pay applicant four weeks pay in lieu of notice - Applicant also claimed A breached good faith obligations at time of sale of business to T - Authority found applicant supplied with sufficient information and given opportunity to comment on employment - Found A did not breach duty of good faith - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged by pay reduction taken when transferred to T, and non-disclosure of information - Authority found failure by A to secure transfer of identical terms and conditions of employment when transferred to T not an unjustified disadvantage - Non-disclosure of information did not amount to unjustified disadvantage - UNFAIR BARGAINING - Applicant alleged T breached s4 and s60 ERA in salary negotiations prior to purchase of business from A - Applicant claimed T bargained unfairly in terms of s68 ERA - Applicant given copy of proposed IEA and advised to seek independent advice - Authority found T responsive and communicative with applicant’s representatives throughout negotiations - Found no breaches of good faith - Found T did not bargain unfairly - DISCRIMINATION - Applicant alleged T breached s104 ERA by paying him less than another employee (“M”) - Authority satisfied grievance raised within 90 days of applicant becoming aware of it - Authority found M and applicant did not have same or substantially similar qualifications, experience or skills - No evidence of causal link between applicant’s salary and race - No discrimination - Conflict of interest - Applicant alleged third respondent (“H”) acted in conflict of interest - Authority found no jurisdiction to determine claim - PENALTY - Applicant sought penalty against H for aiding and abetting A’s breach of IEA and racial discrimination - A’s breach of IEA did not warrant penalty - No justification for award of penalty against H - No evidence H discriminated against applicant - Application dismissed - IT Technician
Result: Application granted (Breach of contract) ; Wages in lieu of notice (4 weeks) ; Applications dismissed (All other claims against first respondent) ; Applications dismissed (All claims against second respondent) ; Applications dismissed (Claims against third respondent) ; Costs reserved
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