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Lu v Institute of Commercial Education (NZ) Ltd
12 Feb 2008, A Dumbleton, AA 40/08, (7 pages)
UNJUSTIFIED DISMISSAL – Redundancy – Applicant entered fixed term individual employment agreement (“IEA”) with respondent expressed to replace all former employment agreements between them – At meeting with staff respondent handed out letter stating former employment contracts (“EC”) would expire and restructuring planned – Letter not addressed to staff personally but collectively – Respondent advised staff that could apply for positions in new structure but had to sign new EC – Restructuring required because respondent lost contract which would have sustained original operations – Authority satisfied restructuring carried out for proper commercial reasons – Authority found loss of contract and subsequent redundancy a possibility known to staff – Found applicant’s fixed term employment agreement a hybrid where could only terminate contract before expiry of fixed term if redundancy event as defined in IEA – Authority found words in letter effectively gave applicant two weeks notice of termination as required by IEA – Applicant claimed letter breached IEA by purporting to vary IEA contrary to express provision that variation required signature by both parties – Authority found clauses in IEA could be interpreted to mean in event of genuine redundancy employment could be ended unilaterally by respondent announcing it – Authority satisfied letter effectively invoked early notice of termination clause although letter could have been more precise – Applicant also argued “redundancy process” clause not complied with – Authority found even if could effectively consult retrospectively after notice, no adequate consultation in this case – Found respondent needed to initiate and actively engage in consultation rather than simply advising employees could speak to employer if they wished – Authority noted that if consultation required before proposal to make change then employees must know what is proposed before expected to give views – Found fair and reasonable employer would have consulted applicant before deciding to terminate employment – Dismissal unjustified – Remedies – No contributory conduct as termination out of applicant’s control –Alternatives available which were likely to have preserved applicant’s employment had there been proper consultation – Not a case where loss of employment inevitable following genuine redundancy – Reimbursement of lost wages $3,000 – Authority considered any claim for damages addressed by remedies given for personal grievance – $750 compensation appropriate – No costs award as applicant did not incur any costs of professional advice – Tutor
Result: Application granted ; Reimbursement of lost wages ($3000) ; Compensation for humiliation etc ($750) ; No costs awarded
Organ v Integral Technology Group Ltd
8 Feb 2008, R Arthur, AA 35/08, (10 pages)
UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed misled by respondent as to viability of position and claimed redundancy not genuine or fair – Respondent argued redundancy genuine but conceded flaws in process – Respondent argued as redundancy for genuine reasons lost wages not due to applicant and compensation to be limited to $5000 – Authority to investigate whether respondent’s decision made genuinely and whether acted fairly in making decision – Authority found not to substitute own judgment for respondent’s on whether genuine reasons for redundancy – Authority observed employer obligated to consult on redundancy and implement decision in fair and sensitive way – Applicant claimed when persuaded to change from management to support position, respondent had already planned to disestablish support position – Also claimed deliberately misled by respondent that restructuring would leave applicant with “safest job in the company” – Applicant claimed informally told position may be redundant but respondent failed to formally inform of prospect or have proper consultation – Authority did not accept pre-conceived plan to make applicant redundant – Failure of restructuring to produce financial results desired did not mean redundancy not for genuine reasons – Respondent concluded applicant’s position no longer sustainable and manager charged with responsibility of discussing redundancy with applicant – Applicant called to “heads up” meeting with manager and told position redundant – Respondent invited applicant to think about options over weekend and attend meeting on Monday to discuss – Respondent accepted “heads up” meeting unjustified and applicant not properly consulted about prospect of redundancy – Authority found respondent did not fully explore whether could have arranged additional work for applicant’s role – Authority found respondent placed onus on applicant to suggest where else could work rather than both parties discussing whether redeployment options or additional work available – Authority accepted that parties agreed applicant to be paid two months salary and outstanding commission but not redundancy compensation – Applicant contacted respondent when only part of notice and commission paid – Respondent asked applicant to complete full and final settlement form – When applicant refused to complete form final payments withheld by respondent – At investigation meeting respondent changed position and made payments – Authority found while process of being laid off inevitably unpleasant, actions of respondent neither fair or sensitive – Dismissal unjustified – Remedies – Authority found applicant’s contributory conduct ten percent for failing to take up respondent’s offer of counselling or career guidance – $6300 compensation appropriate – Technical sales support
Result: Application granted ; Compensation for humiliation etc ($6,300) ; Costs reserved
Patterson v Goh Banner Concepts Development Ltd
7 Feb 2008, R A Monaghan, AA 32/08, (10 pages)
PRACTICE AND PROCEDURE – Identity of employer – JB minority shareholder in respondent and G director and majority shareholder – JB argued attended investigation as witness for respondent and “to protect G” – Authority thought necessary considering JB’s perception of role to clarify whether issue existed as to identity of employer – Authority found no ground on which proposition that respondent not applicant’s employer could be disputed – No allegation JB employer party in personal capacity – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant’s mother sought JB’s help as applicant suffering from depression – JB created role for applicant where applicant to help in construction of JB’s wife’s house – Conflicting evidence whether JB knew before or after employment relationship began that applicant suffered from sleep apnoea – JB became concerned about applicant’s numerous absences from work – Applicant claimed proposal made by JB to reduce hourly rate and working days – Also claimed JB made various derogatory comments about applicant’s ability to work – JB denied telling applicant if offer rejected would “have to go” – Next day applicant rejected proposal – JB made second offer reducing applicant’s pay – Applicant claimed when offer refused JB became angry and abusive – On same day applicant contacted JB and stated would not return to work – JB denied making abusive statements, however, Authority found JB’s tone consistent with demeanour and tone exhibited at investigation meeting – Authority accepted applicant’s account of evidence – Authority found JB attempted to bully applicant into accepting reduced rate of pay, reduced role or both – Found bullying included threats about continued employment and quality of working life – Found applicant could not continue employment under those circumstances – Constructive dismissal – Authority accepted high level of absences from critical position, however, JB not entitled to attempt to browbeat applicant regarding terms of employment – REMEDIES – Authority found applicant’s actions contributed to situation giving rise to grievance but not sufficiently blameworthy to warrant reduction of remedies – Found applicant could not help fact was ill and not responsible for way JB addressed matter – Applicant claimed because of sleep apnoea ability to obtain alternative employment limited – Medical evidence provided to Authority indicated sleep apnoea did not prevent applicant from mitigating loss by finding alternative employment – Authority not satisfied applicant’s loss caused by personal grievance to any significant degree – Four weeks reimbursement of lost wages appropriate – Authority found $3500 compensation appropriate given injury to applicant’s feelings and loss of self esteem – Builder/Foreman
Result: Application granted ; Reimbursement of lost wages (4 weeks) ; Compensation for humiliation etc ($3500) ; Costs reserved
Rose v United Container Ltd
20 Nov 2008, M Urlich, AA 396/08, (9 pages)
UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed discriminated against because of union activities, redundancy not genuine and process leading up to redundancy unjustified – Applicant invited to meeting and told position redundant – Applicant attended further meeting with two union representatives – Respondent produced dismissal letter at second meeting - On objective assessment of respondent’s conduct and relevant circumstances, Authority not satisfied that applicant discriminated against on basis of union activity – Authority found applicant aware business decreasing but dumbfounded that position redundant – Found no prior consultation with applicant nor union about redundancy – No consultation about redeployment options respondent had considered and executed – Found dismissal meeting not fairly convened because applicant had no notice of purpose of meeting and no representative – Significant flaws in process alone rendered dismissal unjustified – REMEDIES – Applicant claimed lost wages beyond twelve weeks provided for in employment agreement (“EA”) – Applicant secured alternative employment on lesser terms requiring more travel to and from work – Authority accepted applicant sufficiently mitigated losses – One month’s lost wages awarded in addition to sum stipulated in EA, pursuant to s128(3) Employment Relations Act 2000 – Applicant claimed shocked by sudden redundancy - Claimed hurt and humiliation exacerbated by inaccurate dismissal letter and respondent’s casual approach to leaving function – Compensation appropriate – No contributory conduct - Storeman/general hand
Result: Application granted (Dismissal) ; Reimbursement of lost wages ($2,235.20)(One month) ; Compensation for humiliation etc ($7,000) ; Costs reserved
Savic v Levante Technologies Ltd t/a Tio Pablo and Anor
11 Feb 2008, L Robinson, AA 37/08, (12 pages)
UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed dismissal unjustified and sought order enforcing claimed personal guarantee of salary by respondent’s directors (“K”) and (“A”) – Respondent argued dismissal for redundancy justifiable and personal guarantee not enforceable – (“K”) and (“A”) argued worried continuing losses incurred by respondent had to be personally financed – K concerned with applicant’s performance and sent “multiple” emails to applicant stating sales a concern and current salary not sustainable on figures – K and A met to discuss respondents continuing poor performance – Applicant invited to meeting to discuss respondent’s financial position and applicant’s possible redundancy – Applicant unable attend meeting due to workplace injury – Meeting held at applicant’s house –
K presented applicant with proposal effectively making applicant’s position redundant – Applicant claimed asked opinion by K but interrupted when tried to comment – Also claimed told by A and K that decision already made – K denied applicant’s evidence and argued document only a proposal and applicant’s input sought – Authority preferred K’s evidence and found applicant’s input sought but applicant offered no comment – Applicant subsequently made redundant – Applicant claimed unexpired portion of annual salary under claimed personal guarantee – Authority found applicant relied on statements made by A and K in offer of employment – However, Authority accepted respondent’s argument that alleged contractual guarantee not enforceable under s2 Contracts Enforcement Act 1956 – Authority found guarantee needed to signed by guarantor to be enforceable at law – Claim for salary dismissed – Authority noted historic nature of legislation meant not amended to recognise modern electronic communications or electronic signatures – Authority satisfied decision to dismiss genuinely result of applicant’s poor financial performance – Authority accepted some consultation but ineffective bearing in mind ultimate purpose – Authority found haste with which home meeting thrust upon applicant evidence consultation hurried and contrived – Authority found fair and reasonable employer would have provided applicant same financial information considered at directors meeting – Authority also found unfair to hold applicant accountable for matters not agreed as duties of employment relationship – Authority found respondent did not act in good faith when permitted applicant to rely on assurance of salary only to terminate employment without discussing parameters of assurance – Dismissal unjustified – REMEDIES – Authority declined to award balance of one years salary as guarantee not enforceable – No contributory conduct – Applicant claimed quick redundancy without consultation great shock to family – Further claimed found it very difficult to find new job close to Christmas and family struggled with finances – Authority found revocation of assurance without warning an aggravating factor of the dismissal – Authority found $8000 compensation appropriate given circumstances – Operations manager
Result: Application dismissed (Arrears of wages)(Claim for salary) ; Application granted (Dismissal) ; Compensation for humiliation etc ($8,000) ; Costs reserved
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