| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 94 |
| Hearing date | 8 May 2012 |
| Determination date | 17 August 2012 |
| Member | G J Wood |
| Representation | M Hubble ; P Mitchell |
| Location | Wellington |
| Parties | Hohepa-Smale v Te Rakau O Te Wao Tapu Trust Inc |
| Summary | ARREARS OF WAGES – UNJUSTIFIED DISADVANTAGE: Applicant claimed unjustifiably disadvantaged by respondent’s treatment of applicant, respondent breached parties’ employment agreement (“EA”) and good faith obligations and sought redundancy compensation in accordance with parties’ EA - Authority found applicant not singled out or undermined by respondent - No unjustified disadvantage – Found respondent’s actions did not amount to breach of contract and respondent did not breach good faith obligations towards applicant – Found respondent’s failure to pay applicant redundancy compensation in accordance with first EA breached parties’ EA - Applicant entitled to six months’ redundancy compensation and three weeks’ wages in lieu of notice - Respondent to pay applicant $39,038 arrears of wages in accordance with first EA - Director of Services |
| Abstract | Applicant employed as director of services. Applicant claimed unjustifiably disadvantaged by respondent’s treatment of applicant, respondent breached parties’ employment agreement (“EA”) and good faith obligations and sought redundancy compensation in accordance with parties’ EA. Redundancy clause stated applicant to receive two months’ salary for each year of service. Respondent entered into contract with Child, Youth and Family Services (“CYFS”) to provide care to youth with behavioural problems. Applicant previously employed in different position and EA contained clause applicant would receive compensation if made redundant (“first EA”). Applicant later offered new position but did not sign EA (“second EA”) and first EA continued to apply. Applicant’s relationship with colleague deteriorated and applicant raised concerns with respondent board. CYFS began investigation into respondent after young people respondent cared for made complaints. No charges laid but CYFS claimed had serious concerns about respondent and Police involved. Applicant decided on own initiative would also investigate complaints. Respondent told all employees at meeting that all employee investigations into complaints were to cease immediately. Applicant reported to respondent executive chairman (“X”). Applicant claimed position entitled applicant to manage complaints and conduct own investigation. Respondent did not respond to applicant’s request for clarification of role as X became ill. Respondent lost CYFS contract and applicant made redundant. Respondent claimed redundancy clause in applicant’s first EA null and void as improperly entered into.;AUTHORITY FOUND –;ARREARS OF WAGES - UNJUSTIFIED DISADVANTAGE: Applicant requesting inclusion of redundancy clause in EA na�ve and based on outdated employment expectations but not deliberate attempt by applicant to take advantage of position within respondent. Applicant not singled out or undermined when employees told all internal investigations were to cease. No unjustified disadvantage. Respondent did not breach first EA as applicant did not lose authority as result of position change. Respondent did not respond to applicant’s request promptly but applicant did not make allowances for respondent issues with CYFS contract, official investigation into respondent and X’s illness. Respondent’s actions did not amount to breach of contract and respondent did not breach good faith obligations towards applicant. Respondent’s failure to pay applicant redundancy compensation in accordance with first EA breached parties’ EA. Applicant entitled to six months’ redundancy compensation and three weeks’ wages in lieu of notice. Respondent to pay applicant $39,038 arrears of wages in accordance with first EA. |
| Result | Application granted (arrears of wages) ; Arrears of wages ($39,038.46) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Wellington_94.pdf [pdf 214 KB] |