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Chen v Polar Food Distributors Ltd
5 Mar 2007, V Campbell, AA 57/07, (5 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant aware company had financial difficulties - Called to meeting and told redundant - Soon after dismissal became aware new employee engaged to do her job - Respondent dismissed applicant even though knew only other sales person intended to leave - Work undertaken by new employee same work previously done by applicant - Initially employed on same hours and rate of pay as applicant - Decision to make applicant redundant profoundly unfair - Lack of consultation and manner in which dismissal implemented meant none of usual actions associated with fair and reasonable treatment present - Failures meant could not say redundancy genuine - Dismissal unjustified - Sales person
Result: Application granted ; Compensation for humiliation etc ($5,000) ; Disbursements in favour of applicant ($70)
Kim v Millenium Ltd
19 Feb 2007, V Campbell, AA 42/07, (8 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent unilaterally changed his terms and conditions when told would just be baking goods on reduced hourly rate - Second employment agreement signed on those terms - First employment agreement stated applicant employed on higher salary as manager - Authority satisfied likely applicant's immigration consultant signed respondent's director's name on agreement, and used it to assist applicant in applying for work permit - First agreement never sighted or signed by respondent, and did not reflect parties actual dealings - Agreement a sham - Given finding, first agreement not unilaterally departed from - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Redundancy - Respondent sold one of its stores - Applicant notified of dismissal on bread order - Respondent had concerns about applicant's ability to bake but no warnings given - More likely than not, principal reason for redundancy director's belief applicant misrepresented his qualifications when employed - However, question of genuineness of qualifications not put to applicant for explanation - Decision profoundly unfair - Not given formal notice redundancy possible or consulted - Manner notice given and lack of consultation not fair and reasonable - Given inherent unfairness in determination and implementation of redundancy, redundancy not genuine - Dismissal unjustified - Remedies - Applicant failed to mitigate losses - However, given director took steps to have applicant's work permit revoked, lost wages to be awarded at rate in second agreement - Applicant's hours unclear - Unable to determine lost wages - Parties directed to mediation to resolve issue - Baker
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (Three months)(Quantum to be determined) ; Leave reserved for quantum of lost wages to be determined ; Compensation for humiliation etc ($3,000) ; Orders accordingly ; Costs reserved
Schnauer v Independent Liquor New Zealand Ltd
20 Feb 2007, YS Oldfield, AA 44/07, (5 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Whether redundancy genuine - Applicant returned to New Zealand to accept new role with respondent - Knew long term future of position not assured, but owner told her would be "looked after generously" if made redundant - Shortly after started owner died in helicopter crash - Widow moved to sell or close down parts of business - Applicant told due to closures position no longer required - Applicant believed only part of role affected by closures and decision motive by personal animosity - Authority not satisfied respondent gathered all information needed to properly consider applicant's role in future of company - Process very rushed - Respondent not in position to make fair and reasonable decision - Process so inadequate impossible to confidently say redundancy genuine - Dismissal unjustified - Remedies - Applicant's argument entitled to more than provided for in employment agreement rejected - Likely owner intended standard package to be regarded as generous - Also, terms of employment finalised after comment - Standard redundancy policies applied - No evidence to establish applicant would have been made redundant later - Redundancy compensation already received to be set off against remedies - Applicant inflexible about work prepared to consider and failed to mitigate loss - Lost wages adequately covered by notice and redundancy payments - Relatively high compensation appropriate given circumstances, including owner's death and recent return to New Zealand
Result: Application granted ; Compensation for humiliation etc ($10,000) ; Costs reserved
Schuster v AFFCO New Zealand Ltd
2 Feb 2007, PR Stapp, WA 20/07, (7 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant informed position disestablished and offered alternative role - Involved change to seasonal work - Applicant pressured for response even when sought more information and time to consult lawyer - Later advised new role no longer available and made redundant - No consultation - No reason for urgency given to matter by respondent - Rationale for restructuring not established to justify redundancy - Lack of disclosure and clarity in relation to alternative role misleading and not actions of fair and reasonable employer - Dismissal unjustified - Remedies - Serious case for reinstatement - However, reinstatement to previous position not practicable as possible respondent would work through process again - Could not be reinstated to alterative role as position uncertain and incomplete - Mitigation of lost wages barely adequate - Supervisor
Result: Application granted ; Reimbursement of lost wages ($10,475.30)(13 weeks) ; Compensation for humiliation etc ($12,000) ; Costs reserved
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