| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 297 |
| Hearing date | 19 Jul 2012 |
| Determination date | 30 August 2012 |
| Member | R Larmer |
| Representation | M Treen ; M Moncur |
| Location | Auckland |
| Parties | Craig v St George International Group Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed unjustifiably dismissed by respondent – Authority found respondent principal’s decision to take on teaching role critically impacted number of teachers who could be made redundant during restructure – Found respondent breached contractual obligations as did not apply parties' collective employment agreement redundancy selection criteria and failed to redeploy applicant during notice period – Found applicant should have been redeployed when employee resigned - Found on balance of probabilities evidence showed teacher employed after applicant dismissed was doing applicant’s job - Found respondent's substantive justification for applicant’s redundancy undermined and serious procedural defects in dismissal process - Dismissal unjustified – REMEDIES - No contributory conduct - Reinstatement practicable and reasonable - Respondent to pay applicant reimbursement of lost wages, parties to determine quantum - $5,500 compensation appropriate - Damages for respondent’s breach of contract not appropriate as applicant already awarded reimbursement of lost wages - Teacher |
| Abstract | Applicant employed as teacher. Applicant claimed unjustifiably dismissed by respondent. Applicant claimed unfairly selected for redundancy and respondent did not follow redundancy criteria in parties’ collective employment agreement (“CEA”). Applicant claimed respondent employed teacher (“H”) to do applicant’s job after applicant made redundant. Respondent claimed applicant’s redundancy genuine and CEA criteria did not apply in circumstances. Parties agreed respondent experiencing financial difficulties. Respondent proposed restructure resulting in redundancy of applicant and another employee. Respondent principal (“M”) decided to move from management to teaching position. Teaching vacancy at respondent arose day after applicant given notice of dismissal as another employee (“P”) resigned. Respondent claimed H employed on fixed term basis as student numbers increased. Respondent claimed P’s resignation did not create a vacancy as later decided to disestablish P’s position as well. Applicant sought reinstatement.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: M’s decision to take on teaching role critically impacted number of teachers who could be made redundant during restructure. M failed to consult with employees or union about decision. As no teachers employed to teach particular class or level, respondent used wrong selection pool as all teachers at all levels should have been included. Respondent breached contractual obligations as did not apply CEA redundancy selection criteria and failed to redeploy applicant during notice period. Applicant should not have been selected for redundancy. Respondent decision to make P redundant outside scope of restructure proposal and therefore respondent required to further consult with employees and union. Applicant should have been redeployed when P resigned. On balance of probabilities evidence showed H doing applicant’s job. Substantive justification for applicant’s redundancy undermined. Respondent breached good faith obligations towards applicant as misled applicant about restructure and failed to provide applicant with relevant information. Applicant not given opportunity to be heard by decision maker. Applicant’s redundancy predetermined. Serious procedural defects in dismissal process. Dismissal unjustified. REMEDIES: No contributory conduct. Reinstatement practicable and reasonable. Respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $5,500 compensation appropriate. Damages for respondent’s breach of contract not appropriate as applicant already awarded reimbursement of lost wages. |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (parties to determine quantum) ; Compensation for humiliation etc ($5,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1)(b);ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s124;ERA s125;ERA s128(3) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Auckland District Health Board v X [2007] ERNZ 66;Simpson Farms Limited v Aberhart [2006] ERNZ 825 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Auckland_297.pdf [pdf 273 KB] |