Personal Grievance - Dismissal - Redundancy - Employment Relations Act 2000
Burlinson v Wellman Group Ltd
13 Oct 2008, D King, AA 355/08, (3 pages)
UNJUSTIFIED DISMISSAL - Redundancy – Verbal agreement for two week trial period - No written employment agreement – Respondent told applicant that applicant no longer required as not much work had come in – Respondent originally agreed to pay one month’s salary in lieu of notice, and allow applicant to use company car and phone to pursue other employment opportunity – Applicant requested additional compensation from respondent – Respondent became angered and withdrew agreement to pay month in lieu of notice – Authority accepted applicant genuinely redundant – Found applicant not consulted and given no notice that employment at risk – Dismissal unjustified – Remedies – No contributory conduct – Suddenness of dismissal, lack of opportunity for input and short period of employment were traumatic and upsetting for applicant – $4,000 compensation appropriate – ARREARS OF WAGES – Holiday pay unpaid – Quantum to be determined – Interest payable on holiday pay – COSTS – Applicant represented self but obtained legal advice – Applicant to be reimbursed for legal advice and filing fee - Sales Representative
Result: Application granted ; One month’s pay in lieu of notice ; Compensation for humiliation etc ($4,000) ; Arrears of holiday pay (Quantum to be determined)(Interest at 9.6%) ; Costs in favour of applicant ($300) ; Disbursements in favour of applicant ($70)(filing fee)
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
Green v Norske Skog Tasman Ltd
18 Sep 2007, V Campbell, AA 290/07, (9 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant’s position disestablished when payroll duties transferred to overseas parent company - Redundancy genuine - Consultation adequate and applicant’s feedback considered - Applicant claimed opportunities for redeployment not properly considered - Applications for redeployment unsuccessful as lacked required skills - Alleged disparity of treatment - Maintenance employees offered other roles despite need for retraining - Difference in treatment explainable by contractual agreement between respondent and union which applied to maintenance area only - Although respondent should have given consideration to applicant before agreeing to job swap between other employees when role possibly suitable for applicant, as matter of degree did not cause otherwise justifiable dismissal to be unjustified - Dismissal justified - Payroll Administrator
Result: Application dismissed ; Costs reserved
Park v K & C Howick Ltd t/a Howick Kim's Club & Anor
14 Aug 2007, D King, AA 247/07, (14 pages)
UNJUSTIFIED DISMISSAL – Redundancy - Proceedings complicated by applicant’s large investment or loan to first respondent – Matter outside Authority’s jurisdiction but coloured employment relationship - Identity of employer – Part of first respondent sold to second respondent and director agreed to second staff to second respondent – Applicant remained employee of first respondent but should have been informed of sale and consulted about “secondment” – Directors suggested applicant look for new employment but would continue to pay PAYE to help him meet residency requirements - No instruction not to come to work – Duties removed from applicant and pay stopped – Applicant alleged after unsuccessful mediation approached by “gangsters” who demanded problems be resolved without recourse to Courts – Authority accepted he felt intimidated but no evidence they were in fact gangsters, or hired by director to intimidate applicant – Applicant later dismissed when position disestablished – Clear much of work related to applicant’s role ceased to exist well before notification of possible redundancy – Failure to notify and discuss situation breached good faith, as did failure to discuss “secondment” – Later attempts at consultation a sham - Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – Reason for failure to pay wages never made clear – Difficult to escape conclusion failure related to poor relationship between parties – Applicant unjustifiably disadvantaged – Failure by respondent to appropriately deal with situation that arose in workplace also constituted disadvantage - Remedies – No lost wages as work disappeared – Global award of compensation – Contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY – Arrears of holiday pay due and owing – Respondent deducted amounts equal to applicant’s PAYE from loan repayments – Deductions not agreed but as matter unrelated to employment Authority could not order reimbursement - PRACTICE AND PROCEDURE - First respondent placed in liquidation after investigation meeting – Registrar of Companies accepted applicant’s objection to removal of company from Register on basis it was party to legal proceedings - Marketing Manager
Result: Application granted ; Compensation for humiliation etc ($4,000 reduced to $3,000) ; Arrears of holiday pay ($2,726.73) ; Costs reserved
A v Auckland City Council
29 Sep 2008, J Wilson, AA 342/08, (14 pages)
UNJUSTIFIED DISADVANTAGE – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days - Applicant claimed disadvantaged in employment due to sexual harassment victimisation and bullying by colleague (“Z”) – Applicant propositioned by Z for sex and claimed that after incident Z used position to bully and victimise applicant – Applicant did not report incident nor allegations of bullying until five years after incident occurred - Authority found grievance not raised within 90 days – Disadvantage grievance dismissed - UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed Z played major part in applicant’s redundancy – Respondent developed new management strategy – Two new positions replaced applicant’s position – Authority found new positions substantially different from applicant’s old position – Respondent told applicant to apply for new positions – Applicant believed was deliberately excluded from applying for positions due to minimum requirements advertised and not encouraged to apply – Applicant raised grievance, and communications became more formal – Authority found incident coloured relationship between applicant and Z – However, found Z did not play role in final redundancy decision – Found full consultation took place – Applicant genuinely redundant and process fair – However, Authority found way defendant managed applicant’s departure fell short of what fair and reasonable employer would have done – Found defendant did not meet obligation under s1A(b) Employment Relations Act 2000 to be constructive and communicative – Found although applicant did not seek defendant’s advice on applying, applicant should have been fully informed and supported throughout process – Dismissal unjustified - Remedies – No contributory conduct – Due to respondent’s inaction, applicant suffered stress, hurt and humiliation greater than would otherwise have suffered – Compensation appropriate
Result: Application granted (dismissal) ; Compensation for humiliation etc ($6,000) ; Application dismissed (disadvantage) ; Costs reserved
