Personal grievance - Dismissal - Redundancy - Employment Relations Act 2000
Allott v Transition to Work Trust
1 Nov 2007, J Crichton, CA 127/07, (8 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicant’s position made redundant when respondent lost funding - Applicant’s argument should not have subject to restructuring as programmes she worked on unaffected by lost contracts rejected - Redundancy genuine - Respondent proposed restructure and sought feedback - Manager unfairly failed to respond to applicant’s request for assistance with self evaluation required she had to fill out - Applicant did different work to colleagues and evaluation did not include full details of her work - Process determined by respondent in advance not adhered to - Required respondent to rely of self evaluation forms to determine employees to remain - Process flawed - Respondent also admitted relied on alleged earlier alleged disciplinary event, but no record of this - Respondent failed to include all applicant’s work in evaluations - Dismissal unjustified - Remedies - Respondent not commercial organisation, however serious breach of process and substantial award appropriate - Life coach
Result:
Application granted : Reimbursement of lost wages ($7,500) ; Compensation for humiliation etc ($11,000) ; Disbursements in favour of applicant ($70)(Filing fee)
Bolton v Nuwaiseeb Ltd (formerly Bright Tiles Ltd)
8 Nov 2007, D Asher, WA 150/07, (8 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Purported fixed term did not meet statutory requirements as no reasonable grounds for end of employment - Sales down but applicant claimed did not understand employment at risk - Applicant rejected suggestion he take pay cut and no other cost saving alternatives raised - Applicant dismissed, but not paid redundancy notice in reliance on financial hardship term in employment agreement - Genuine redundancy - Respondent took minimal, but sufficient steps to put applicant on notice ongoing employment required improved sales and to explore alternatives - Dismissal justified - BREACH OF CONTRACT - Respondent failed to demonstrate why it invoked financial hardship clause - Had not shown payment of redundancy compensation would endanger its continuing viability as required by employment agreement - Applicant entitled to notice as redundancy payment and recalculation of holiday pay - Retail sale manager
Result:
Application granted (Breach of contract) ; Damages (Quantum to be determined) ; Application dismissed (Dismissal) ; Costs reserved
Kessick v Canterbury Wool Scourers Ltd
19 Nov 2007, P Montgomery, CA 140/07, (14 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - When business sold to respondent, applicant accepted role doing same work on provision may be amended in future - Advised of restructuring and invited to discuss proposal to create new, expanded position and disestablish current role - Applicant attempted to clarify proposal but put off by manager - Alleged interview merely “going through the motions” - Applicant unsuccessful and given notice - Failure to provide job description for initial role breached s65 Employment Relations Act 2000 - Breach significant as unclear whether initial role substantially different from new position - Respondent in no position to assert positions substantially different - Issues could have been addressed before interview, but manager refused to provide clarification - Applicant’s evidence manager assured him would still have job with respondent accepted - Failure to consult and behaviour when setting up interview lacked good faith - Procedure seriously deficient - Heightened responsibility when considering termination of long standing employee unlikely to find comparable employment due to age and industry - Also conflict of interest may have influenced objectivity of selection process - External candidate proposed by member of interview panel - No genuine pursuit of alternative employment - Redundancy not genuine - Dismissal unjustified - Production co-ordinator
Result:
Application granted ; Reimbursement of lost wages (8 weeks) ; Compensation for humiliation etc ($15,000) ; Costs reserved
Rippon v Norsand Ltd
11 Dec 2007, Y S Oldfield, AA 389/07, (7 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Claimed dismissal procedurally unfair - Respondent disestablished part of business where applicant worked - Applicant called to meeting with consultant and told position disestablished - Not offered opportunity to do contract work - Redeployment not considered as no need for staff and respondent did not think applicant would be interested in other work - Lack of consultation - Applicant not given opportunity to influence decision - Procedurally unfair - Dismissal unjustified - Remedies - Applicant encouraged to think had bright future at respondent - Breach of trust compound by director’s failure to tell applicant in person - ARREARS - Applicant claimed parties agreed to profit sharing arrangement and reimbursement of certain expenses - Respondent denied making those commitments - Employment agreement did not contain profit share or expense terms - Evidence fell short of establishing agreement to profit share - Reimbursement claim also failed as expenses unauthorised and minimal - Painter
Result:
Application granted (Dismissal) ; Compensation for humiliation etc ($6,000) ; Application dismissed (Arrears) ; Costs reserved
Thomson v New Zealand Ruby Rock Ltd
26 Nov 2007, H Doyle, CA 143/07, (13 pages)
UNJUSTIFIED DISMISSAL - Whether employee or independent contractor - Overwhelming evidence applicant employee - Applicant unwittingly involved in conflict between director and his wife, respondent’s other shareholder - Told to stop wife working in shop but felt uncomfortable as considered her his boss - Created stress between applicant and director - Applicant dismissed on notice - Differing reasons given for dismissal - Resulted in altercation between parties - Summarily dismissed during notice period - Respondent advanced several reasons for dismissal: redundancy, poor performance, misconduct relating to altercation and alleged refusal to co-operate when told hours would change - Respondent hired another employee and store remained open - No genuine redundancy - Process unfair and not undertaken in good faith - Fair and reasonable employer would not have expected employee to deal with situation involving wife without assistance - No proper process in relation to performance concerns and did not justify dismissal - Altercation main reason for dismissal during notice period - Other reason for dismissal was failure to co-operate with changed hours but this did not justify dismissal - Cooling off period required - Both dismissals unjustified - Remedies - Applicant’s role in altercation contributed to summary dismissal - Contributory conduct 10 percent - Arrears of wages and holiday pay due and owing - Interest eight percent - COUNTERCLAIM - Respondent’s claim for damages for losses resulting from need for director to return to New Zealand to deal with situation and impact on sales dismissed - Manager
Result:
Application granted ; Reimbursement of lost wages ($6,679.40 reduced to $6,011.46) ; Compensation for humiliation etc ($7,000 reduced to $6,300) ; Arrears of wages ($555.24) ; Arrears of holiday pay (Quantum to be determined) ; Interest (8%) ; Costs reserved
