Penalty - Employment Relations Act 2000
Green & Ors v Rendezvous Hotels (NZ) Ltd
6 Aug 2007, M Urlich, AA 235/07, (25 pages)
UNJUSTIFIED DISMISSAL – Redundancy – Applicants (GG, JG, CW and YL) made redundant one week after management rights leased to respondent – As condition of sale, all employees were offered employment on existing terms, and service deemed continuous – Applicants summarily dismissed in meetings as respondent declared HR department redundant – After meetings, applicants given final pay cheques and told to return respondent’s property and leave premises – Respondent advertised HR position – Authority found position advertised same as GG’s role, under different job title, and CW and YL should also have been considered for position – Found respondent knew redundancy was possible but made repeated written and verbal statements that jobs secure – No transparency between accepted need to make costs savings and selection of applicants’ positions for redundancy – In absence of clear trail, respondent unable to establish redundancies genuine – Authority found no consultation or opportunity to comment on redundancy proposal – Found no discussion with applicants about implementation of redundancy process – No adequate notice of dismissal meetings, advice of purpose of meeting or advice of right to have representative– No option to work out notice periods – No written references or certificates of service – No opportunity to farewell co-workers – Process woefully inadequate, without explanation – Redundancies not genuine and not procedurally fair – REMEDIES – GG, JG and CW received one month’s pay in lieu of notice – YL received two weeks pay in lieu of notice – No contributory conduct - GG entitled to statutory three months award for reimbursement of lost wages only – Advertisement of replacement position was hurtful to GG but claim it damaged reputation was speculative – Abrupt dismissal and advertisement of position had significant impact on GG – GG awarded $15,000 compensation for distress and injury - JG secured new position within month of dismissal so did not claim lost wages – JG’s health suffered as result of dismissal – Process in dismissing JG insensitive - JG awarded $12,500 compensation - CW secured new position within month of dismissal so did not claim lost wages – CW deeply affected by dismissal and suffered ill mental and physical health as result – Impact on CW exacerbated by lack of proper process – CW entitled to $15,000 compensation - YL sought lost future benefit of 14 weeks parental leave – Authority found paid parental leave was statutory entitlement, not employment benefit and not employer’s obligation – Gap in legislation meant no statutory protection for employees made redundant before commenced parental leave – YL made reasonable efforts to mitigate loss by applying for 19 jobs since dismissal – YL entitled to three months lost wages – YL suffered considerable negative effects as result of dismissal, amplified by pregnancy and immigrant status – YL entitled to $15,000 compensation - PENALTY – Authority found respondent seriously breached obligations owed to applicants, however evidence fell short of establishing breaches deliberate – No penalty awarded - Training Manager (GG), Security Manager (JG), Human Resources Manager (CW), Human Resources Administrator (YL)
Result: First applicant (GG): Application granted ; Reimbursement of lost wages (2 months)($7,284.64) ; Compensation for humiliation etc ($15,000) ; Costs reserved Second applicant (JG): Application granted ; Compensation for humiliation etc ($12,500) ; Costs reserved Third applicant (CW): Application granted ; Compensation for humiliation etc ($15,000) ; Costs reserved Fourth applicant (YL): Application granted ; Reimbursement of lost wages (3 months)($7.615.44) ; Compensation for humiliation etc ($15,000) ; Costs reserved
Hazelden v Howick Village Optometrists Ltd
31 Oct 2007, M Urlich, AA 342/07, (17 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant alleged pressured to return to work before injury healed and faced unfair scrutiny upon return - Claimed respondent’s management of issues around injury, disciplinary action, and inquiry into data entry error required her to leave employment - Respondent made efforts to ascertain extent of injury and applicant’s absence - Although stressful for applicant, actions not unreasonable - No evidence to support claim returned to work too soon - Applicant received written warning after asked junior employee to run personal errand - Disciplinary process and warning deficient and Authority expressed concerns - However, no grievance raised in relation to it and matter not taken further - Received letter about another meeting to discuss data entry error - Nothing to indicate meeting disciplinary - Applicant took sick leave due to stress - Respondent claimed surprised at applicant’s health issues and sought indication when she would return - Applicant resigned - Given discrete nature of events and time involved, course of conduct designed to coerce resignation could not be established - No explanation why concerns not raised with respondent - Applicant could not conclude on basis of second letter that meeting could result in threat to employment - Follow up letters from respondent not unreasonable - As concerns not raised with respondent, difficult to see how resignation could be foreseeable - No constructive dismissal - PENALTY - Applicant sought penalty for failure to provide written employment agreement - Application declined - No evidence lack of written agreement created a problem between parties - BREACH OF CONTRACT - Counterclaim - Lack of notice - Claim baseless given respondent failed to clearly state terms of employment in writing and no evidence of damage consequent to breach - Receptionist
Result: Application dismissed ; Counterclaim dismissed ; Costs reserved
