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Dawson v Te Wananga O Aotearoa
12 Sep 2006, J Scott, AA 121A/06, (4 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Whether redundancy genuine - Fact similar role established shortly after applicant dismissed did not automatically demonstrate original decision to disestablish position not genuine - Genuine decision others would take on applicant's duties but experience showed not feasible - Respondent may have made wrong decision at time but made for genuine reasons - Applicant's concern arose when similar position advertised and filled shortly after made redundant - Applicant not entitled to be placed in new position automatically - New position not identical to applicant's former position - However, applicant well qualified for role and may have been successful if applied - Commitment given by respondent to consider applicant for future roles expired by time applications for new position closed - Also, commitment contingent on applicant applying for suitable position - Respondent invited her to apply for new position but she did not - Dismissal justified - Length of service one year one month - Placement Liaison Co-ordinator/Lecturer
Result: Application dismissed ; Costs reserved
Donovan v Tourism West Coast Inc
8 Sep 2006, P Cheyne, CA 137/06, (6 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Respondent clearly advised applicant contemplating redundancies and arranged meeting to discuss options - Applicant sought to defer meeting to obtain advice but it proceeded informally with applicant given extra time to provide comment - Authority did not accept other employees advantaged, or applicant disadvantaged, relative to one another - Respondent did not use applicant's complaint about other employees against her - Applicant's position disestablished and payment made above contractual obligation - Genuine redundancy - Respondent did not comply with requirement to provide access to all relevant information and opportunity to comment before making decision that adversely affected employment - Delay in providing budget information - Applicant did not receive copy of email from other employee which formed basis of decision to reallocate work - Email also conveyed trenchant criticism of applicant - Entitled to opportunity to respond before decision made - Also merit in point applicant made to feel like thief as result of security measures taken on last day of work - Actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Respondent argued applicant contributed to situation as not adequately prepared for meeting with chairman - Did not lead to conclusion applicant contributed in blameworthy way to situation - Reinstatement not practicable - Length of service four years - Marketing manager
Result: Application granted ; Compensation for humiliation etc ($4,000) ; Costs reserved
Langman v Ludowici Packaging Ltd
10 Oct 2006, D Asher, WA 133/06, (12 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Whether redundancy genuine - Applicant believed dismissal predetermined because of conspiracy and incompatibility - At investigation meeting accepted no compelling evidence to support allegation - Position terminated for financial reasons - Applicant instructed advocate to pursue exit package - Position severely limited outcome - Dismissal justified - However, absence of fair process meant applicant unjustifiably disadvantaged - UNJUSTIFIED DISADVANTAGE - Process employed by respondent unnecessarily hurried, applicant dismissed one week after informed of restructuring proposal - Respondent declined to accept applicant's proposed exit package - Overall tenor of communication and absence of invitation to respond meant respondent's reply not counter offer but notice of termination - Departure date suggested by advocate - Applicant distress at date caused by advocate, not respondent - Respondent departure date chosen to enhance applicant's re-employment opportunities - Reasonable for applicant to have input into this - Fair and reasonable employer would have expressly advised applicant exit package not acceptable and, in absence of alternate proposal, intended making position redundant - Also would have advised whether applicant's proposal to attend mediation acceptable, and if not, why - Failure especially significant because employment agreement provided any party could seek mediation assistance - Unjustified disadvantage - Remedies - Much of evidence in support of compensation claim based on belief of conspiracy - Entitled to compensation for respondent's failure to meet contracted obligation to undertake mediation and unfair haste of redundancy - Length of service nine months - Customer services supervisor
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($4,000) ; Costs reserved
Ruwhiu v Omapere Taraire E & Rangihamama X3A Ahu Whenua Trust
1 Sep 2006, L Robinson, AA 279/06, (7 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Authority considered mediation would undermine urgent nature of proceedings - Respondent told staff restructuring likely and invited ideas to improve business - Consultant to deliver draft business plan to respondent later in week - Staff felt unable to give feedback without details of restructuring proposal and expressed concerns about consultation process - When new structure presented all staff "displaced" and could apply for new positions - Authority did not accept applicant applied - Respondent considered applicant anyway and decided unsuitable - Unfair not to put views to applicant for comment - Applicant not given access to information relevant to continuation of employment or opportunity to comment before decision made - Duty of good faith required consultant's report be provided to applicant - Consultation about general restructuring not same as particular consultation about termination of specific position - Obligation on respondent to preserve continued employment wherever possible - Dismissal unjustified - Remedies - Authority not prepared to find dismissal inevitable if no procedural irregularities - Entitled to reimbursement of lost wages as Authority unable to conclude position genuinely redundant - New position remained vacant - Reinstatement ordered - Parties directed to mediation to assist reinstatement - Length of service not specified - Farm manager
Result: Application granted ; Compensation for humiliation etc ($5,000) ; Reimbursement of lost wages (quantum to be determined by parties) ; Reinstatement ordered ; Parties directed to mediation ; Costs reserved
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