| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 292 |
| Hearing date | 14 Feb 2012 |
| Determination date | 28 August 2012 |
| Member | K J Anderson |
| Representation | W Lawson, C Dawson ; R Marsden |
| Location | Rotorua |
| Parties | Morrick v JMV Agri Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed unjustifiably dismissed by respondent – Authority found applicant did not raise unjustified disadvantage grievance at parties’ second meeting and grievance not raised until four months later therefore outside 90 day period - Found applicant’s unjustified disadvantage grievance raised outside 90 day period - Applicant’s redundancy genuine – Found respondent’s dismissal process not procedurally fair – Found respondent did not act in good faith as failed to consult with applicant about sale of respondent before applicant’s employment terminated - Dismissal unjustified – REMEDIES - No contributory conduct - $6,000 compensation appropriate - Respondent financial information showed respondent did not have ability to pay but not appropriate for Authority to impose liability on purchaser of respondent as not party to proceedings - Workshop Manager |
| Abstract | Applicant employed as workshop manager. Applicant claimed unjustifiably disadvantaged by demotion and unjustifiably dismissed by respondent. Respondent denied applicant dismissed or unjustifiably disadvantaged and claimed all respondent’s employees had employment terminated when respondent sold business. Respondent claimed applicant’s unjustified disadvantage grievance not raised within 90 day period or alternatively parties resolved applicant’s claim unjustifiably disadvantaged. Applicant met with respondent director (“M”) and manager (“B”) and claimed was told to “stand down” as workshop manager and would be senior mechanic. Applicant claimed told if accepted demotion, respondent could continue to employ another employee (“O”) as respondent in some financial difficulty. Applicant claimed felt had no option but to accept demotion otherwise O made redundant. Applicant’s wages unchanged but claimed management and supervision duties removed. B claimed sensible arrangement due to respondent’s financial situation and not demotion. Applicant manager (“S”) claimed applicant struggled with paperwork and suggested B carry out some administrative duties but applicant would remain in change. S claimed applicant consulted, initially happy about proposal but later uncooperative and attempted to undermine B. M noticed change in applicant’s behaviour. Issues with applicant completing time and job sheets correctly. Applicant claimed meeting organised and told by S did not think applicant could continue to work for respondent. Applicant not aware meeting disciplinary. Parties held second meeting and applicant aware meeting disciplinary (“second meeting”). Parties disputed whether applicant raised grievance at second meeting. Parties agreed after second meeting that respondent would not take further disciplinary action and applicant’s responsibilities clearly set out. Applicant claimed two months after second meeting, employees told respondent had been sold to another business (“X”). Applicant made redundant. Applicant claimed respondent and X essentially same as M director of both and, if awarded remedies, Authority should lift “corporate veil” and order remedies payable by X.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISADVANTAGE: Probable applicant demoted as lost much of management status and decision making ability. Applicant did not raise unjustified disadvantage grievance at parties’ second meeting and grievance not raised until four months later therefore outside 90 day period. Applicant’s previous discussions with M expressed applicant’s unhappiness with changes to position but did not amount to raising grievance with respondent. Applicant’s unjustified disadvantage grievance raised outside 90 day period.;UNJUSTIFIED DISMISSAL: Applicant’s redundancy genuine. Respondent’s dismissal process not procedurally fair. Respondent did not act in good faith as failed to consult with applicant about sale of respondent before applicant’s employment terminated. Dismissal unjustified. X not obliged to offer applicant employment. REMEDIES: No contributory conduct. No reimbursement of lost wages as redundancy genuine and applicant paid in lieu of notice period. $6,000 compensation appropriate. Respondent financial information showed respondent did not have ability to pay. Authority noted applicant had not requested X be joined to proceedings and sale of respondent genuine. Not appropriate for Authority to impose liability on X as not party to proceedings. |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($6,000) ; Application dismissed (raising personal grievance and unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(4);ERA s6A;ERA s103A;ERA s114;ERA s114(1) |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601 ; [1998] 3 NZLR 276;Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533;Creedy v Commissioner of Police [2006] ERNZ 517;GN Hale & Sons Ltd v Wellington Caretakers IUOW (1990) ERNZ Sel Cas 843 ; [1991] 1 NZLR 151;Houston v Barker (t/a Salon Gaynor) [1992] 3 ERNZ 469;Ruebe-Donaldson v Sky Network Television Ltd (No 1) [2004] 2 ERNZ 83;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Square 1 Service Group Ltd v Butler [1994] 1 ERNZ 667;Start v Foster (t/a The Hutt Pet Centre) [1994] 2 ERNZ 200;Wilkinson v ISL Computer Systems [1993] 1 ERNZ 512 |
| Number of Pages | 24 |
| PDF File Link: | 2012_NZERA_Auckland_292.pdf [pdf 376 KB] |