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Baskett v B & M Entertainment Ltd
13 Mar 2007, GJ Wood, WA 38/07, (10 pages)
UNJUSTIFIED DISMISSAL - Applicant employed as brothel manager - Business restructured - Applicant promoted to new group manager position - Other manager left without notice when not accepted to new position - Applicant felt overworked and resigned, but owners asked her to withdraw resignation - Authority found resignation withdrawn by agreement - Respondent tried to revert to old business structure and rehired other manager - Told applicant group manager position disestablished at meeting - Respondent mistakenly believed could rely on applicant's resignation - In effect applicant lost position as group manager and demoted - Constituted substantial unilateral variation to employment agreement, not redundancy - Applicant correct to conclude had effectively been dismissed at end of meeting - Respondent failed to consult applicant when decided to revert to previous structure - No justification because of lack of consultation - Dismissal unjustified - PENALTY - Also claimed respondent failed to provide safe workplace due to heavy workload, and worked in excess of contracted hours - Additional hours required for short time, and applicant given support when resigned - Applicant prepared to work long hours - Penalty not deserved - Brothel manager
Result: Application granted ; Reimbursement of lost wages ($12,318) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Craig v Otago Hospitality Ltd
29 Mar 2007, P Montgomery, CA 33/07, (6 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed not advised of restructuring or proposed sale of business, and no opportunity to negotiate redundancy package - Director visited applicant at home, alleged discussed possibility of redundancy and applicant resigned - Applicant claimed no real discussion - Respondent also claimed applicant never signed employment agreement, despite being asked to on number occasions - Submitted employed under standard agreement with no provision for redundancy compensation - Applicant said did sign employment agreement, with redundancy provisions - Authority not prepared to guess contents of earlier agreement, worked only from written agreement supplied by respondent - No redundancy payment contemplated - However, four weeks notice required - Once buyer indicated no need for applicant's services onus on respondent to ensure applicant treated appropriately - No resignation - No consultation or compliance with terms of employment agreement - Dismissal unjustified
Result: Application granted ; Reimbursement of lost wages ($2,016)(4 weeks notice) ; Compensation for humiliation etc ($4,000) ; Holiday pay ($120.96) ; Interest (9%) ; Disbursements ($70)(Filing fee)
Hammond & Anor v Bakel's Edible Oils (NZ) Ltd
15 Jan 2007, J Scott, AA 6/07, (12 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Respondent proposed to change employees hours - Changes substantial and envisaged applicants ("H") and ("Y") would need to agree and sign variations - New proposal required applicants work wider span of hours and total weekly hours would be reduced - Increase on hourly rate to compensate for reduced hours - Applicant's put forward questions in relation to proposed changes - Authority found applicants told respondent unhappy with changes - Applicants employment terminated on grounds of redundancy - Restructuring had no affect on number of employees required for operations - Implementation of redundancies unfair - Applicants not given notice redundancy possible - No appropriate consultation on redundancy proposal - Requirement to engage in consultation on redundancy different from consultation on restructure of operations - Second applicant saw changes as significantly reducing leisure/family time - Negative impact of proposal noted but not genuinely addressed - If all reasonable consultation, negotiation and persuasion failed to resolve impasse then would have been justified in considering redundancy - Dismissal unjustified - Applicants submission dismissal amounted to unlawful lockout declined - Tank farm operators
Result: Application granted ; Reimbursement of lost wages ("H")($5,934.00) ; ("Y")($2,350.00) ; Compensation for humiliation etc ("H")($6,000.00) ; ("Y")($6,000.00)
Hutchinson v Signature Security Systems Ltd & Anor
30 Jan 2007, P Montgomery, CA 12/07, (6 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant advised position to be replaced by two new roles with lower salaries and no supervisory duties - Told severance pay not open to negotiation - Respondent declined request to attend mediation on matter but undertook to provide applicant with job descriptions for new roles - Applicant finished work that day but to be given time to consider positions - No opportunity to comment on proposed restructure - Failure may have been of little consequence had job descriptions been provided - Applicant effectively excluded from applying and had no option but to accept dismissal - Process unfair as lacked true consultative element and because undertaking to provide position descriptions not carried through - Respondent's refusal to attend mediation during consultative process not breach of employment agreement as no employment relationship problem at time - Transfer of applicant's duties not a contractual breach of employment agreement - Redundancy genuine but process seriously flawed - Dismissal unjustified - Remedies - Claim for lost remuneration failed as redundancy genuine - Respondent commended for offer of assistance package and redundancy compensation - No lockout - Applications for penalties dismissed - Manager
Result: Application granted ; Compensation for humiliation etc ($6,500) ; Costs reserved
McCarthy v Centurion GSM Ltd t/a Digital Mobile & Anor
1 Mar 2007, R Arthur, AA 53/07, (15 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Redundancy - Respondents submitted applicants employment ended through expiry of fixed term and not by redundancy - Alternatively argued genuine redundancy - Authority found first respondent employed and dismissed applicant - No written employment agreement - Applicant claimed oral terms of employment included rights to shares and directorship - Claimed offered and accepted employment on the basis of shares and directorship, but were removed without his agreement - Totality of evidence did not support applicants claim - Applicant more likely than not, took job because of opportunity to be an investor or partner - Applicant negotiated shareholdings in companies and attempted to obtain loan to pay for shares - Respondent refused to provide financial information, blocking loan and share transfer - Respondent expected applicant to put cash into business - Applicant asked to resign from directorships - Absence of written confirmation regarding arrangement of shareholding supported view that arrangement with applicant was as investor not as employee - Respondent not bound to assist applicant raise loan - Applicant entitled to four weeks annual leave - No reliable evidence of existence of fixed term agreement - No term requiring payment of redundancy compensation - Lack of written agreement meant applicant did not have specific redundancy terms - However, terms in draft EA provided four weeks salary as compensation - Commercial rationale for restructuring weak - Existence or need for position not issue - Issue salary that would be paid for position - No real evidence redundancy was because position no longer required - Respondent failed to provide "significant paper trail" indicating genuine commercial reasons for redundancy - Respondent also claimed incorrectly tendered redundancy compensation and seeks return of payment - Counterclaim unsuccessful - Redundancy unjustified - REMEDIES - Six months salary less ex gratia payment awarded - Regional operations manager
Result: Reimbursement of lost wages ($20,232.77)(6 months) ; Loss of benefit ($7500) ; Arrears of holiday pay ($4410) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Milligan and Ors v IAG New Zealand Ltd
23 Apr 2007, J Wilson, CA 44/07, (14 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Respondent restructured and applicants not reconfirmed in positions - Fair and reasonable process followed to reach decision to dismiss - Applicant's questioned selection process but no evidence process unfair or biased - Open to respondent to decide applicants not best for job - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Respondent failed to properly manage consequences of decision to make applicants redundant - Resulted in more stress and trauma than necessary - Applicants should have had been given opportunity to be represented during process - Respondent's HR manager told Authority she considered supporting applicants her role - HR manager representative of respondent, support person had different role - Unjustifiable action - Applicants' request for penalties declined
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) : Compensation for humiliation etc ($8,000)(FM) ; ($6,000)(MB) ; ($3,000)(MS) ; Costs reserved
Saywell v New Zealand Management Academies Ltd
27 Apr 2007, V Campbell, AA 125/07, (9 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed redundancy a sham - Also claimed breached statutory good faith obligations and consultation process flawed - Whether redundancy genuine - Applicant had given evidence at co-worker's Authority investigation meeting - Respondent raised concerns about evidence applicant gave, her performance as academy manager, and information she gave during redundancy process - No disciplinary action taken - Applicant concerned manager trying to force her out of job - - Respondent's academies not performing to expectations - Draft proposal to change business structure presented to managers - Advised position disestablished, and invited apply for new managerial position - Fair and reasonable employer would have concluded new positions required to ensure ongoing viability of business - Restructuring was for genuine business purposes - Applicant unsuccessful when applied for role - Advised redundant - Claimed not advised redundancy possible consequence - Other employees who chose not to apply for new roles made redundant - More likely than not applicant aware disestablishment of role could result in redundancy - Under misapprehension would be appointed to new position and process a formality - Claimed recruitment process flawed, predetermined, and interview farcical - Satisfied interview process structured and formal - More likely than not no predetermination about applicant's future employment at time of interview - Also claimed respondent engaged in misleading conduct and breached obligations under s4 Employment Relations Act 2000 - No evidence to support claim - Applicant knew reasons for restructuring and how role would be impacted - Dismissal justified
Result: Application dismissed ; Costs reserved
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