| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 49 |
| Hearing date | 21 Sep 2011 - 7 Dec 2011 (2 days) |
| Determination date | 26 April 2012 |
| Member | P R Stapp |
| Representation | P Hunt ; G Tayler |
| Location | Napier |
| Parties | Davidson v Rittson-Thomas t/a Totara Hills |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent - Authority found restructuring genuine and no ulterior motive – Found applicant not consulted on whether applicant or other employee’s position should be made redundant – Dismissal unjustified – REMEDIES – No contributory conduct – $4,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found employment agreement obligated respondent to make KiwiSaver contributions and no arrears of holiday pay as holiday pay overpaid – Respondent to pay applicant arrears of wages – Parties to determine quantum - COUNTERCLAIM – BREACH OF CONTRACT – Found not established applicant deliberately damaged property – Application dismissed – Farm manager |
| Abstract | Applicant employed as farm manager. Applicant claimed worked 90 continuous days and weekends at beginning of employment and abused by respondent. Respondent accepted called applicant ‘boy’ but denied making other comments. Respondent warned applicant twice about unauthorised absences and applicant required to complete timesheets. Respondent met employees and sought suggestions on reducing respondent’s expenditure. Two months later respondent told employees one farm manager position would become redundant. Following meeting applicant claimed told by other farm manager (“C”) that applicant would be made redundant. C denied conversation. Respondent told applicant position made redundant due to market and seasonal factors. Applicant dismissed. Applicant claimed redundancy was excuse for applicant’s dismissal. Applicant sought arrears of KiwiSaver payments and holiday pay, but respondent claimed applicant said did not want to join KiwiSaver. Respondent made counterclaim for damage to accommodation provided by respondent.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Not established applicant worked 90 continuous days or weekends. Not established C told applicant would be made redundant or that applicant bullied or harassed. Restructuring genuine and respondent not motivated by ulterior motive. While applicant had opportunity to provide input respondent should have provided applicant with publications supporting respondent’s claim of reduced stock numbers and drought conditions. Order prohibiting publication of respondent’s financial information. Applicant should have been consulted on whether his or C’s position would be made redundant. Dismissal unjustified. REMEDIES: No contributory conduct. Likely applicant would have been made redundant even if respondent followed fair procedure. No loss of wages. $4,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent discovered that applicant overpaid holiday pay. Employment agreement obligated respondent to make KiwiSaver contributions but no arrears of holiday pay as holiday pay overpaid. Respondent to pay applicant arrears of wages, parties to determine quantum.;COUNTERCLAIM - BREACH OF CONTRACT: Respondent made authorised deduction from applicant’s wages but deduction nullified by overpayment of applicant’s holiday pay. Respondent should have consulted applicant about deduction amount. Not established that applicant deliberately damaged respondent’s property. Counterclaim dismissed. |
| Result | Applications granted (Unjustified dismissal)(Arrears of wages); $4,000 compensation for humiliation etc; Arrears of wages (quantum to be determined); Applications dismissed (Arrears of holiday pay)(Counterclaim)(Breach of contract); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;KiwiSaver Act 2006 s15;KiwiSaver Act 2006 s17;KiwiSaver Act 2006 s19;KiwiSaver Act 2006 s102;KiwiSaver Act 2006 s103;KiwiSaver Act 2006 s104 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Wellington_49.pdf [pdf 70 KB] |