| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 199 |
| Hearing date | 30 May 2012 |
| Determination date | 14 September 2012 |
| Member | D Appleton |
| Representation | L Ryder, S McClelland ; J Smith |
| Location | Christchurch |
| Parties | Patterson v Superior Motor Cycles Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed unjustifiably disadvantaged by respondent’s failure to consult with applicant and unjustifiably dismissed – Applicant advised before amendment to s103A Employment Relations Act 2000 (“ERA”) would be made redundant but employment did not cease until after s103A ERA amended - Parties disputed whether amended s103A ERA applied - Authority found correct to apply amended s103A ERA test to all of respondent’s actions as applicant’s employment continued after amendment came into force and respondent continued to owe duties to applicant until employment ceased - Found genuine redundancy but applicant should have been offered role of employee respondent employed after proposed applicant’s redundancy – Found respondent failed to give applicant sufficient information and breached good faith obligations towards applicant - Dismissal unjustified – Found applicant unjustifiably disadvantaged by respondent’s flawed consultation process but additional remedies not appropriate – REMEDIES - No contributory conduct - Respondent to pay applicant $8,750 reimbursement of lost wages - $10,000 compensation appropriate – Motorbike Salesman |
| Abstract | Applicant employed by respondent as motorbike salesman. Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s failure to consult with applicant. Respondent claimed redundancy genuine and consulted with applicant. Respondent sent applicant letter proposing redundancy due to anticipated financial downturn after Christchurch earthquake. Parties held meeting. Respondent rejected applicant’s alternative proposals. Applicant denied offered alternative role at meeting and claimed would have accepted any role to avoid dismissal. Respondent later employed new employee (“X”) in casual role. Parties disputed whether X employed before or after parties’ meeting, date of X’s employment agreement (“EA”) and when X’s EA signed. Applicant advised would be made redundant before amendment to s103A Employment Relations Act 2000 (“ERA”) but applicant’s employment did not cease until after s103A ERA amended. Parties disputed whether amended s103A ERA applied.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: More likely than not X signed EA on day after parties’ meeting, not before. Correct to apply amended s103A ERA test to all of respondent’s actions as applicant’s employment continued after amendment in force and respondent continued to owe duties to applicant until employment ceased. Not unreasonable for respondent to anticipate business downturn after earthquake. X’s role described as casual but in reality almost fulltime position. Respondent offered X fulltime role at respondent before parties’ meeting to discuss applicant’s redundancy. Genuine redundancy but applicant should have been offered X’s role. Applicant offered another role at parties’ meeting but respondent failed to give applicant sufficient information to understand role offered. Respondent breached good faith obligations towards applicant. Dismissal unjustified. Applicant unjustifiably disadvantaged by respondent’s flawed consultation process but additional remedies not appropriate. REMEDIES: No contributory conduct. Respondent to pay applicant $8,750 reimbursement of lost wages. $10,000 compensation appropriate. |
| Result | Application granted ; Reimbursement of lost wages ($8,750) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(1A)(c);ERA s103A;ERA s124;ERA s128(3);Judicature Act 1908 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;New Zealand Automobile Association Inc v McKay [1996] 2 ERNZ 622;Vice-Chancellor of Massey University v Wrigley (2011) 9 NZELC 93,782;Wang v Hamilton Multicultural Services Trust [2010] ERNZ 468 |
| Number of Pages | 20 |
| PDF File Link: | 2012_NZERA_Christchurch_199.pdf [pdf 242 KB] |