| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 145 |
| Hearing date | 14 Mar 2012 |
| Determination date | 30 April 2012 |
| Member | J Crichton |
| Representation | J Watson ; D Quigan |
| Location | Hamilton |
| Parties | Horne v Te Awamutu Residential Trust |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Authority found decision to make applicant’s position redundant not genuine – Found respondent did not follow fair and reasonable process – Dismissal unjustified – Found respondent contributed to applicant’s ill health and to situation leading to respondent’s decision to make applicant’s position redundant – Applicant unjustifiably disadvantaged – REMEDIES – No contributory conduct - $25,000 reimbursement of lost wages - $8,000 compensation appropriate |
| Abstract | Applicant employed by respondent as office manager. Applicant required three months leave for surgery. Applicant claimed arranged with member of respondent’s board (“F”) for F to cover applicant’s role. F disputed amount of work F contracted to perform. Applicant returned to work on part time basis and discovered important work not done. Respondent concerned about lack of financial reporting. One month later applicant returned to sick leave due to anxiety and depression. Three months later respondent decided to make applicant’s position redundant and replace with independent contractor. Two weeks later applicant spoke with manager and indicated planned to return to work. Respondent’s advocate (“Q”) met with applicant to discuss proposal to make applicant’s position redundant. Two weeks later applicant informed position redundant. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant took all proper steps to arrange for work to be performed while on leave. Restructure proposed to overcome reporting defects during applicant’s absence but proposal undermined by applicant’s imminent return to work. Given respondent’s anxiety about financial reporting, extraordinary that respondent did not address reporting defects while applicant on sick leave, especially as F was member of respondent’s board. Awarding contract awarded to F, who was member of respondent’s board and participated in decision to dismiss applicant and award contract to F, gave impression that respondent advantaged one of its own. Respondent effectively replaced single employee with single contractor and did not address respondent’s concerns about performance of work when employee absent. Redundancy not genuine. Q’s meeting with applicant not proper consultation because respondent’s representatives not present. Respondent discussed applicant’s suggestions with F after deciding to replace applicant with F. Found respondent going through the motions and process unfair. Dismissal unjustified. UNJUSTIFED DISADVANTAGE: Respondent’s failure to address reporting defects before applicant’s return contributed to applicant’s continued ill health and to situation leading to respondent’s decision to make applicant’s position redundant. Applicant unjustifiably disadvantaged. REMEDIES: No contributory conduct. $25,000 reimbursement of lost wages. $8,000 compensation appropriate. |
| Result | Applications granted; $25,000 reimbursement of lost wages; $8,000 compensation for humiliation etc; Disbursements in favour of applicant ($71.56)(Filing fee); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s122;ERA s124;ERA s128;ERA s128(2) |
| Cases Cited | G N Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843;;[1991] 1 NZLR 151;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Vice-Chancellor of Massey University v Wrigley (2011) 9 NZELC 93,782 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_145.pdf [pdf 65 KB] |