| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 85 |
| Hearing date | 6 Mar 2012 |
| Determination date | 26 July 2012 |
| Member | M Ryan |
| Representation | T Oldfield ; S Langton |
| Location | New Plymouth |
| Parties | Bauer v Armourguard Security Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s failure to provide applicant with security training – Authority found respondent took ‘active steps’ to provide training – Found training readily and obviously available and applicant knew training there for applicant’s use – Found respondent ‘provided’ applicant with necessary training – Found respondent did not breach obligation to take active steps to provide training – Found applicant not disadvantaged by respondent’s failure to provide training in response to applicant’s letter as not clear applicant requesting training – Found no breach of respondent’s obligation to provide training in 2010 as not possible to provide training that year – Found respondent breached MOU by not inviting staff to attend training before specified date – Found applicant not unjustifiably disadvantaged by respondent’s breach of MOU as applicant not interested in undertaking training by correspondence – No unjustified disadvantage – Security officer |
| Abstract | Applicant employed by respondent as security officer. Applicant claimed unjustifiably disadvantaged by respondent’s failure to provide applicant with security training. Under collective employment agreement (“CEA”) parties agreed on need to take active steps to provide training to NZ security standards. Under CEA respondent agreed to provide training to employees, where possible, to enable employees to attain certain qualification. Respondent provided correspondence training through two polytechnics in succession. Respondent told employees training available and claimed applicant did not approach respondent about training. Ten months later applicant sent letter to respondent. Applicant claimed purpose of letter was to request training and respondent obligated to provide training once requested. Respondent claimed letter request for respondent to consider whether applicant’s previous qualifications able to be credited towards security qualification and not request for training. Respondent did not respond to letter. Both polytechnics became unable to provide training to respondent’s employees in applicant’s area and respondent entered agreement with organisation (“C4”) to pilot in-house training programme. Respondent entered memorandum of understanding (“MOU”) with applicant’s union providing respondent would invite all employees without certain qualifications to attend recognised training by specified date. After specified date respondent informed employees of training available. Respondent selected participants for C4 programme based on respondent’s operational ability to cover shifts. Applicant not selected. Respondent claimed received no complaints about selection of course participants. Respondent claimed training courses unavailable during 2010 for operational reasons but entered agreement with C4 to provide training by correspondence at beginning of following year. Applicant raised personal grievance with respondent. Respondent provided applicant information as to next correspondence training course and told applicant could commence when suitable. Applicant declined offer as planning to go on pre-arranged holiday.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Respondent located private training provider after legislative changes meant polytechnics unable to provide training to employee’s in applicant’s area. No operationally manageable training available in 2010. Respondent took ‘active steps’ to provide training. ‘Provide’ in CEA meant making training readily and obviously available so that applicant knew could use it when wanted to. Training readily and obviously available to respondent’s employees with exception of 2010. Applicant knew training there for applicant’s use. CEA did not require respondent to approach applicant personally to offer to arrange training. Respondent ‘provided’ applicant with necessary training. Respondent did not breach obligation to take active steps to provide training. Applicant not disadvantaged by respondent’s failure to provide training in response to applicant’s letter as not clear applicant requesting training. Respondent obligated under CEA to provide training ‘where possible’. ‘Where possible’ did not require action to be taken unless impossible. ‘Where possible’ meant respondent obliged to give priority to creating circumstances where respondent able to perform action promised and, having created those circumstances, respondent reasonably able to perform action. Despite respondent’s active steps, not possible to provide training in 2010. No breach of respondent’s obligation to provide training in 2010. Even if respondent breached obligation to provide training in 2010 applicant not unjustifiably disadvantaged as no evidence applicant wished to commence training prior to raising personal grievance. Respondent breached MOU by not inviting staff to attend training before specified date. Applicant not unjustifiably disadvantaged by respondent’s breach of MOU as applicant not interested in undertaking training by correspondence. No unjustified disadvantage. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414;Simmons, An Inspector Under Agricultural Workers Act 1977 v Fairweather [1984] ACJ 171;Norris v Syndic Manufacturing Co [1952] 2 QB 135;Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] ERNZ 317;Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 |
| Number of Pages | 16 |
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