| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 121 |
| Hearing date | 8 Dec 2011 |
| Determination date | 10 April 2012 |
| Member | R A Monaghan |
| Representation | T Fletcher ; S Wilson |
| Location | Auckland |
| Parties | Murphy v Stella Travel Services (NZ) Ltd |
| Summary | PARENTAL LEAVE – UNJUSTIFIED DISMISSAL - Redundancy – Applicant claimed redundancy after returned from parental leave breached respondent’s (Stella Travel Services obligation under s41 Parental Leave and Employment Protection Act 1987 (“PLEPA”) to keep position open – Respondent claimed redundancy genuine – Applicant took seven months’ parental leave – Respondent did not employ replacement and applicant’s duties covered by other employees – Respondent chief financial officer (“K”) met with applicant prior to applicant returning to work – K denied told applicant position had been disestablished and claimed only told applicant “looking to” disestablish role – Respondent proposed restructure disestablishing applicant’s position and sought applicant’s feedback – Authority found likely K told applicant respondent “looking to” disestablish respondent’s role but applicant thought meant position had already been disestablished – Applicant claimed returned to work and clear position had already been disestablished as duties continued to be carried out by other employees who reported directly to K – Respondent claimed applicant expected to resume managing team when returned – Respondent sent applicant letter month that later considered applicant’s position surplus as other employees could perform duties and no redeployment options available – Applicant dismissed – Applicant claimed redundancy not genuine as no change to respondent’s situation after respondent agreed to keep applicant’s position open while on leave – Found respondent not required to show change in respondent’s situation occurred after approved applicant’s leave – Found no evidence was already redundancy situation before leave approved – Found no suggestion respondent had ulterior motive when applicant made redundant – Found applicant’s redundancy genuine – Applicant claimed consultation process sham as redundancy predetermined – Found consultation process genuine and respondent remedied initial refusal to provide further information – Found however respondent did not conduct wider review of whole department and reviewed only need for applicant’s position – Found review inconsistent with respondent’s s41 PLEPA obligation to keep applicant’s position open – Found respondent did not have substantially similar vacant position could appoint applicant to - Dismissal unjustified – REMEDIES – 50 per cent contributory conduct - Found applicant’s refusal to engage in consultation process as believed decision predetermined breached applicant’s obligations to be responsive and communicative with respondent - Found reimbursement of lost wages inappropriate – $7,500 compensation appropriate – Found compensation for loss of benefits inappropriate – PENALTY – Applicant sought penalty for respondent’s alleged breach of good faith obligations and parties’ employment agreement – Found penalty inappropriate as respondent consultation process not a sham and respondent provided adequate information about review – No penalty - IT Operations Manager |
| Result | Application granted (parental leave and unjustified dismissal) ; Contributory conduct (50%) ; Compensation for humiliation etc ($7,500) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Parental Leave |
| Statutes | ERA s4;ERA s123(1)(b);ERA s124;Parental Leave and Employment Protection Act 1987 s36;Parental Leave and Employment Protection Act 1987 s41;Parental Leave and Employment Protection Act 1987 s49;Parental Leave and Employment Protection Act 1987 s49(1)(c);Parental Leave and Employment Protection Act 1987 s50;Parental Leave and Employment Protection Act 1987 s51;Parental Leave and Employment Protection Act 1987 s52 |
| Cases Cited | Lewis v Greene [2004] 2 ERNZ 55;Rolls v Wellington Gas Co Ltd [1998] 3 ERNZ 116;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Auckland_121.pdf [pdf 89 KB] |