| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 62 |
| Hearing date | 30 Mar 2012 |
| Determination date | 11 April 2012 |
| Member | P Cheyne |
| Representation | H McKinnon ; G Brown |
| Location | Nelson |
| Parties | O'Brien v Holer New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Respondent unaware when employment commenced applicant did not have sufficient qualifications for position – Equipment sold or serviced by respondent required e-tag to show equipment compliant with safety standards – Issuing e-tag could only be approved by certified employee – Respondent supervisor discovered applicant not qualified to issue e-tags - Respondent manager (“B”) arranged meeting with applicant to discuss organisational change likely to affect applicant’s position – B told applicant would not lose job – B told applicant carrying out internal review and sought applicant’s feedback – Respondent proposed changing applicant’s job description to include requirement that applicant qualified to issue e-tags – Applicant claimed respondent said applicant would be made redundant as did not have sufficient qualifications – Found applicant not told would be made redundant at meeting – Respondent sought advice on qualification requirements from local business (“X”) – Applicant required to successfully complete course and complete 1,500 hours work experience to obtain qualification – Applicant claimed told at second meeting would need to find out how could become qualified and did not see X’s advice on qualification requirements – Authority found applicant given copy of X’s email and took afternoon off work to research how could obtain qualifications – Parties met next day and applicant dismissed – Respondent requested applicant return footwear issued by respondent – Applicant claimed humiliated as believed had to take off footwear was wearing and return to respondent – Respondent claimed applicant wearing older footwear and only wanted applicant to return new footwear recently issued by respondent – Respondent returned applicant’s property after applicant left workplace – Property included applicant’s certificate returned to applicant in damaged condition – Found applicant did not mislead respondent about qualifications when employment commenced – Found fair and reasonable employer would not have concluded that applicant’s position surplus to requirements – Found after applicant dismissed respondent advertised for qualified person to fill applicant’s position – Found respondent did not explain why took six months to act on concerns about applicant’s qualifications and then dismissed applicant one week after presented applicant with proposal – Found applicant not given opportunity to speak directly with respondent director who decided to dismiss applicant – Found respondent should have given applicant information on qualification requirements and respondent’s costs assessment if applicant completed training – Found respondent failed to discuss with applicant decision that applicant would not work out notice period and applicant had no time to collect belongings or return uniform – Found not genuine redundancy situation - Dismissal unjustified – REMEDIES – No contributory conduct - Found respondent could have justifiably terminated employment as applicant did not have appropriate qualifications but decision procedurally unfair – Found reimbursement of lost wages inappropriate – Found applicant entitled to compensation for respondent’s poor handling of dismissal - $7,500 compensation appropriate - Service Technician |
| Result | Application granted ; Compensation for humiliation etc ($7,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Electricity Act 1992;Electrical Registration Act 1979;ERA s4;ERA s4(1A);ERA s4(1A)(c);ERA s6 |
| Cases Cited | GN Hale & Sons Ltd v Wellington Caretakers IUOW (1990) ERNZ Sel Cas 843;New Zealand Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Christchurch_62.pdf [pdf 67 KB] |