| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 26 |
| Hearing date | 5 Sep 2011 - 7 Sep 2011 (3 days) |
| Determination date | 09 March 2012 |
| Member | R A Monaghan |
| Representation | G W Calver ; S Hornsby-Geluk |
| Location | Napier |
| Parties | Hislop v Lowe Corporation Ltd |
| Summary | BREACH OF CONTRACT – Applicant claimed respondent breached employment agreement entitlement to redundancy compensation – Applicant claimed entitlement term of employment with first respondent company and continued to be carried over along with 4+2 formula as entered into successive employment relationships – Applicant claimed in alternative that by custom and practice in meat industry entitlement was implied term of agreement with respondent – Authority found no express term in applicant’s numerous employment agreements that entitled applicant to redundancy compensation on 4+2 formula – Found alleged custom and practice very broadly framed – Found alleged custom and practice did not directly address position of management employees in meat industry – Found variations to redundancy compensation 4+2 formula – Found terms of existing redundancy entitlements could be preserved and passed on to new employer rather than occurring as matter of custom and practice – Found law changes not consistent with existence of custom and practice regarding entitlement to redundancy compensation calculated on 4+2 formula – Found although term often present in meat industry not gained required degree of notoriety – Found redundancy compensation calculated on 4+2 formula common in meat industry but other redundancy arrangements were also made – Found evidence did not establish to the required certainty that as matter of custom and practice applicant entitled to redundancy compensation on 4+2 formula – Found existence of implied term not proved – Applicant claimed respondent president (“L”) bound respondent to pay applicant redundancy compensation on 4+2 formula – Found L only indicated support for applicant to make claim that was entitled to redundancy compensation – Found L did not have authority to bind respondent to make payment applicant sought – Found applicant not entitled to redundancy compensation on 4+2 formula – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Respondent had important supply agreement expire which meant certain guaranteed revenue and supplies no longer guaranteed – Respondent general manager claimed revenue generated by trading did not cover applicant’s salary and overheads – Applicant did not accept new trading position – Found respondent addressed need for applicant’s role in context of wider restructuring proposal for financial reasons – Found redundancy genuine – Applicant claimed respondent did not meet obligation to consult in good faith because did not give applicant sufficient information surrounding redundancy – Found applicant provided with sufficient information and had enough time to respond to proposal – Found respondent adequately considered redeployment during consultation process – Applicant claimed outcome predetermined – Found outcome not tainted by predetermination – Dismissal justified – PENALTY – Applicant sought penalty for respondent’s alleged failure to provide written employment agreement – Found respondent did not have obligation to provide applicant with written employment agreement when applicant started employment – Found insufficient evidence offered in support of penalty – No penalty – Trading Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s135(5);ERA s242;ERA Second Schedule cl10;Employment Contracts Act 1991;Industrial Relations Act 1973;Labour Relations Act 1987;Wage Adjustment Regulations 1974 |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] ERNZ 601;Brighouse Ltd v Bilderbeck [1994] 2 ERNZ 243;Everist v McEvedy [1996] 3 NZLR 348;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Vice-Chancellor of Massey University v Wrigley [2011] NZEmpC 37;Woods v Ellingham [1977] NZLR 218 |
| Number of Pages | 31 |
| PDF File Link: | 2012_NZERA_Wellington_26.pdf [pdf 143 KB] |