| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 14 |
| Hearing date | 15 Dec 2010 |
| Determination date | 20 January 2012 |
| Member | H Doyle |
| Representation | G Cooper ; P Shaw |
| Location | Christchurch |
| Parties | Cooper v Christchurch Casinos Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - PARENTAL LEAVE – Applicant claimed unjustifiably dismissed by respondent - Respondent granted applicant’s request for paid parental leave (“PPL”) – Respondent told applicant position would be kept open until end of applicant’s PPL – Respondent appointed new manager (“M”) who reviewed respondent’s structure after applicant commenced PPL – Respondent implemented restructure – Respondent sent applicant email while applicant on PPL with email attachment outlining proposed changes and asked for applicant’s comments by deadline – Applicant did not view email attachment or respond until after submissions closed and new positions advertised – M claimed process could still have been put on hold to discuss changes with applicant - Applicant applied for new positions but unsuccessful – Respondent offered applicant supervisor position on current salary for six months before salary reduced to usual supervisor salary – Applicant claimed new positions substantially similar to applicant’s previous position – Applicant declined supervisor position and did not return to work after PPL ended - Respondent claimed applicant failed to return after PPL and resigned – Authority found reasoning behind restructure sound – Found applicant entitled to decline supervisor position as not substantially similar position – Respondent told applicant if did not accept supervisor position would not be position for applicant after PPL ended – Found applicant dismissed before PPL ended – Found objectively assessed one of new positions and applicant’s previous position substantially similar - Found applicant’s redundancy not genuine – Applicant held previous management position for 18 months and had completed respondent’s training programme – Found real prospect that applicant could be appointed to one of new positions – Found respondent had not satisfied Authority redundancy situation of such nature that no prospect of applicant being appointed to substantially similar position – Found respondent breached ss 41 and 49 of Parental Leave and Employment Protection Act 1987 (“PLEPA”) – Found by time applicant read email attachment outlining proposed changes unlikely consultation with respondent would be meaningful – Found respondent’s restructuring process inadequate and unfair to vulnerable employee such as applicant – Found M never had opportunity to observe applicant’s ability at workplace – Found respondent unreasonably relied on applicant reading emails while on PPL and did not properly consult with applicant about new positions – Found complaint made out under s56(b) PLEPA – Dismissal unjustified – REMEDIES – No contributory conduct - Found applicant declining supervisor role did not amount to failure to mitigate loss – Found reimbursement of lost wages appropriate – Parties to determine quantum - $12,000 compensation appropriate - Service Shift Manager |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($12,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Parental Leave and Employment Protection Act 1987;Parental Leave and Employment Protection Act 1987 s41;Parental Leave and Employment Protection Act 1987 s49;Parental Leave and Employment Protection Act 1987 s51;Parental Leave and Employment Protection Act 1987 s51(b);Parental Leave and Employment Protection Act 1987 s56(b);Parental Leave and Employment Protection Act 1987 s65 |
| Cases Cited | Wallis v Carter Holt Harvey Ltd [1998] 3 ERNZ 984;GN Hale & Son Ltd v Wellington VTC Caretakers Etc IUOW (1990) ERNZ Sel Cas 843;Lewis v Greene [2004] 2 ERNZ 55;McCulloch v New Zealand Fire Services Commission [1998] 3 ERNZ 378;Secretary of Justice v Gibbons unreported, G Wood, 21 July 2008, WA 96/08 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Christchurch_14.pdf [pdf 100 KB] |