| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 129 |
| Determination date | 28 June 2012 |
| Member | H Doyle |
| Representation | K Coulston ; G Malone |
| Location | Christchurch |
| Parties | Lewis and Ors v South Pacific Meats Ltd |
| Other Parties | Smith, Seymour, Manson, Davis, Chant, Lush, Ballantyne, McKinnel, Clinton, McKay, Jordan, Scadden, Taueki, Taylor |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicants claimed unjustifiably dismissed by respondent – Authority found once clear no agreement would be reached between respondent and Progressive fair and reasonable employer would have concluded applicants’ positions surplus to respondent’s requirements – Found redundancies genuine – Found respondent failed to confirm outcome of union meeting with applicants’ union (“NZMWU”) before announcing impending redundancies and failed to inform NZMWU respondent considering not finalising agreement with Progressive – Found unfair that NZMWU workers’ representative restricted in manner of meeting with applicants prior to announcement of impending redundancies and required to move off site – Found no predetermination in respondent’s consideration of alternatives to redundancy, payment of redundancy compensation and re-employment – Appropriate to treat grievance as unjustified disadvantage rather than unjustified dismissal – Applicants unjustifiably disadvantaged – REMEDIES – No contributory conduct – $4,000 compensation appropriate (first, second, third, ninth, twelfth and thirteenth applicants) – $3,000 compensation appropriate (fourth and fourteenth applicants) – $2,500 compensation appropriate (eighth applicant) – $2,000 compensation appropriate (fifth, sixth and seventh applicants) – $1,000 compensation appropriate (tenth and eleventh applicants) – Leave reserved to give evidence before Authority (fifteenth applicant) – PENALTY – Applicants sought penalty for respondent’s alleged breach of good faith – Found respondent informing employees of respondent’s current bargaining offer and consequences of non-acceptance breach of bargaining agreement but not intended to undermine bargaining – Found penalty appropriate for respondent’s failure to consult NZMWU following NZMWU’s meeting with members but matter taken into account already in assessing compensation for unjustified disadvantage – No penalty |
| Abstract | Applicants claimed unjustifiably dismissed by respondent. Applicants sought penalty for respondent’s alleged breach of good faith. Respondent had agreement that preferred supplier of product to Progressive but respondent required fresh agreement with Progressive to enable respondent to upgrade plant without closing it. If successful in reaching agreement with Progressive, respondent intended to take over Progressive’s boning room operations resulting in transfer of boning room staff’s employment to respondent. Applicant’s union (“NZMWU”) initiated bargaining with respondent for new collective employment agreement but bargaining not commenced until three months later. Respondent insisted on lower rate of pay for new employees and claimed unable to conclude new agreement with Progressive otherwise. Respondent held meeting and informed employees of respondent’s current offer and consequences if terms were not accepted. NZMWU held meeting with members, including most applicants, but did not advise respondent of meeting outcome. Respondent gained understanding that respondent’s offers had been rejected at meeting but did not discuss what occurred at meeting with NZMWU. Respondent considered unable to offer Progressive certainty of contractual terms and gave NZMWU notice of impending redundancy of all employees at plant. Respondent held meeting with employees to announce plant closure. NZMWU workers’ representative (“M”) requested onsite meeting with union members before announcement. Respondent denied request and M held meeting with members on road outside respondent’s premises. Applicants claimed respondent gave applicants actual notice of redundancy at meeting and subsequent consultation a sham. Following consultation meeting three weeks later, respondent gave applicants notice of termination of employment. Applicants dismissed. Applicants claimed respondent had mixed motives or ulterior motives in making applicants redundant and respondent never intended to conclude agreement with Progressive. Applicants claimed respondent used negotiations with Progressive to put pressure on employees to accept inferior terms and conditions for prospective employees. Applicants claimed respondent’s consideration of alternatives to redundancy, payment of redundancy compensation and re-employment predetermined. Applicants claimed respondent failed to allow or made it difficult for NZMWU to come on site to talk to applicants.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent had only given applicants notice of impending redundancies at announcement rather than actual notice of redundancy. Plant closure was operative reason for redundancies. Fact that Progressive and respondent had concluded heads of agreement indicated bargaining between Progressive and respondent not a charade. Respondent not using negotiations with Progressive to put pressure on employees to accept inferior terms and conditions for prospective employees. No obligation for respondent to enter agreement with Progressive and once clear no agreement would be reached fair and reasonable employer would have concluded applicants’ positions surplus to respondent’s requirements. Redundancies genuine. Respondent failed to confirm outcome of union meeting with NZMWU before announcing impending redundancies and failed to inform NZMWU respondent considering not finalising agreement with Progressive. Unfair that M restricted in manner of meeting with applicants prior to announcement of impending redundancies and required to move off site. No predetermination in respondent’s consideration of alternatives to redundancy, payment of redundancy compensation and re-employment. No procedural unfairness arising out of NZMWU’s access to worksite. Appropriate to treat grievance as unjustified disadvantage rather than unjustified dismissal. Applicants unjustifiably disadvantaged. REMEDIES: No contributory conduct. $4,000 compensation appropriate (first, second, third, ninth, twelfth and thirteenth applicants). $3,000 compensation appropriate (fourth and fourteenth applicants). $2,500 compensation appropriate (eighth applicant). $2,000 compensation appropriate (fifth, sixth and seventh applicants). $1,000 compensation appropriate (tenth and eleventh applicants). Leave reserved to give evidence before Authority (fifteenth applicant).;PENALTY: Delay commencing bargaining with NZMWU not intentional strategy on respondent’s part. Respondent’s behaviour during bargaining not in bad faith. Respondent informing employees of respondent’s current offer and consequences of non-acceptance breach of bargaining agreement but not intended to undermine bargaining. Penalty appropriate for respondent’s failure to consult NZMWU following NZMWU’s meeting with members but matter taken into account already in assessing compensation for unjustified disadvantage. No penalty. |
| Result | Application granted (unjustified disadvantage); Compensation for humiliation etc ($4,000)(first, second, third, ninth, twelfth and thirteenth applicants); Compensation for humiliation etc ($3,000)(fourth and fourteenth applicants); Compensation for humiliation etc ($2,500)(eighth applicant); Compensation for humiliation etc ($2,000)(fifth, sixth and seventh applicants); Compensation for humiliation etc ($1,000)(tenth and eleventh applicants); Leave reserved to give evidence before Authority (fifteenth applicant); Applications dismissed (unjustified dismissal)(penalty); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Employment Relations Amendment Act (No 2) 2004 s38;ERA s4(1);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4(4)(e);ERA s4A;ERA s34;ERA s53;ERA s103A |
| Cases Cited | Cammish v Parliamentary Service [1996] 1 ERNZ 404;Davis v Ports of Auckland Ltd [1991] 3 ERNZ 475;G N Hale & Sons Ltd v Wellington etc Caretakers’ IUOW (1990) ERNZ Sel Cas 843; [1991] 1 NZLR 151;Hill v Cantec Services Ltd [1993] 1 ERNZ 51;New Zealand Seafarers’ Union Inc v Silver Fern Shipping Ltd [1998] 3 ERNZ 768;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 37 |
| PDF File Link: | 2012_NZERA_Christchurch_129.pdf [pdf 323 KB] |