| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012 NZERA Auckland 294 |
| Hearing date | 18 Jun 2012 |
| Determination date | 27 August 2012 |
| Member | J Crichton |
| Representation | K Muir ; D Erickson |
| Location | Auckland |
| Parties | Clapham v Alexander & Co Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed on ground of redundancy – Authority found predominant reason for dismissal respondent’s anxiety about performance issues and relationship between performance issues and applicant’s health status – Found redundancy not genuine – Found no consultation with applicant and fact no attempt made to provide financial information to applicant suggested strongly redundancy a sham – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant reimbursement of lost wages, parties to determine quantum – $12,000 compensation appropriate – Business development manager |
| Abstract | Applicant employed by respondent as business development manager. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed expected applicant’s role would have defined end as applicant disclosed had life-threatening illness. Respondent raised performance concerns with applicant and received conciliatory response. Respondent raised questions about applicant’s health status and sought response from applicant’s medical advisers. Applicant replied had provided full disclosure of health status prior to commencement of employment, proposed to obtain medical certificate confirming applicant fit for full time employment and stated anything beyond this invasion of applicant’s privacy. Respondent raised fresh performance concerns with applicant and stated applicant would be suspended if did not provide full medical disclosure by specified date. Applicant failed to provide full medical disclosure and suspended. Applicant dismissed following day on ground of redundancy. Applicant claimed real reason for dismissal fact applicant had survived longer than respondent anticipated and respondent had developed performance concerns. Respondent claimed business deteriorating and specific tasks allocated to applicant completed substantially. Respondent claimed increasingly concerned about applicant’s performance and considered applicant’s ill health affecting performance and behaviour.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent did not anticipate having to bring employment relationship to end because believed relationship would end naturally by applicant’s death. Respondent concerned about applicant’s performance and health status in last few months of applicant’s employment and little evidence redundancy in contemplation. Predominant reason for dismissal respondent’s anxiety about performance issues and relationship between performance issues and applicant’s health status rather than redundancy, especially given no consultation or sharing of information with applicant. Redundancy not genuine. No consultation with applicant and fact no attempt made to provide financial information to applicant suggested strongly redundancy was sham. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $12,000 compensation appropriate. |
| Result | Application granted; Reimbursement of lost wages (parties to determine quantum); Compensation for humiliation etc ($12,000); Disbursements in favour of applicant ($71.56)(filing fee); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 |
| Cases Cited | Rillstone v Product Sourcing International 2000 Ltd unreported, R Arthur, 7 June 2007, AA167/07;Rolls v Wellington Gas Co Ltd [1998] 3 ERNZ 116;Vice-Chancellor of Massey University v Wrigley (2011) 9 NZELC 93,782 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_294.pdf [pdf 178 KB] |