| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 305 |
| Hearing date | 16 Aug 2012 |
| Determination date | 04 September 2012 |
| Member | E Robinson |
| Representation | M Nutsford ; N Bhikha |
| Location | Whangarei |
| Parties | Nathan-Bristow v Mana Internationald Ltd t/a Kawakawa Four Square |
| Summary | UNJUSTIFIED DISADVANTAGE – Discrimination – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed discriminated against on basis of union membership – Applicant claimed unjustifiably disadvantaged by respondent’s unilateral reduction of applicant’s work hours and failure to provide employment agreement (“EA”) – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent unable to rebut presumption applicant discriminated against on basis of union membership – Applicant discriminated against on basis of union membership – Applicant unjustifiably disadvantaged by respondent’s unilateral reduction of applicant’s work hours and failure to provide EA – Found no evidence respondent consulted about proposed redundancy – Found respondent’s decision to select applicant’s position for redundancy not fair and reasonable – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $4,875 reimbursement of lost wages - $5,500 compensation appropriate – PENALTY - $500 penalty appropriate for respondent’s failure to provide EA - $300 penalty appropriate for respondent’s failure to provide wage and time records |
| Abstract | Applicant claimed discriminated against on basis of union membership. Applicant claimed unjustifiably disadvantaged by respondent’s unilateral reduction of applicant’s work hours and failure to provide employment agreement (“EA”). Applicant claimed unjustifiably dismissed by respondent. Applicant informed by respondent applicant’s work hours reduced from 40 hours per week to 30 hours per week. Applicant claimed after told respondent applicant had called union, respondent started to discriminate against applicant by employing other employees at higher hourly rate. Applicant’s work hours subsequently reduced further to 20 hours per week. Applicant claimed handed letter informing applicant respondent suffering business downturn and applicant’s position redundant. Respondent agreed to meeting but after applicant arrived with union representative respondent refused to hold meeting in store and meeting held in car park. After respondent informed by union respondent’s process incorrect, respondent posted notice asking for volunteers for redundancy. Fellow employee (“K”) claimed offered to take redundancy but application declined and respondent made clear wanted to dismiss applicant. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent accepted ‘anti-union’ and unable to rebut presumption applicant discriminated against on basis of union membership. Applicant discriminated against on basis of union membership. Applicant unjustifiably disadvantaged by respondent’s unilateral reduction of applicant’s work hours and failure to provide EA. Genuine redundancy situation but no evidence applicant consulted about proposed redundancy. Rejection of K’s application for voluntary redundancy supported conclusion respondent not deflected from decision applicant’s position to be made redundant. Respondent’s decision to select applicant’s position for redundancy not fair and reasonable as respondent able to reduce hours of casual employees and decision based on disciplinary matters not subject to any performance management process. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $4,875 reimbursement of lost wages. $5,500 compensation appropriate.;PENALTY: $500 penalty appropriate for respondent’s failure to provide EA. $300 penalty appropriate for respondent’s failure to provide wage and time records. |
| Result | Applications granted; Reimbursement of lost wages ($4,875); Compensation for humiliation etc ($5,500); Penalty – failure to provide employment agreement ($200)(payable to Crown)($300)(payable to applicant); Penalty – failure to provide wage and time records ($100)(payable to Crown)($200)(payable to applicant); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s63A;ERA s65;ERA s103(1)(b);ERA s103A;ERA s119;ERA s130(2);ERA s130(4) |
| Cases Cited | Cammish v Parliamentary Service [1996] 1 ERNZ 404;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_305.pdf [pdf 252 KB] |