| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 328 |
| Hearing date | 15 Aug 2012 |
| Determination date | 20 September 2012 |
| Member | E Robinson |
| Representation | D Flaws ; M Broadbent |
| Location | Whangarei |
| Parties | Spanhake v Tranznorth Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed on ground of redundancy – Authority found respondent entitled to require applicant to take annual leave under Holidays Act 2003 – Found applicant received training on new software – No unjustified disadvantage – Found re-evaluation of respondent’s operations as result of merger resulted in assessment full-time office administrator position no longer required – Found redundancy genuine – Found no pre-determined decision to make applicant’s position redundant – Found although no requirement for respondent to advise applicant able to have representation at first meeting to explain situation, respondent expected applicant to be upset and fair and reasonable employer would have advised applicant could have representation at meeting – Found respondent did not explain satisfactorily to applicant truck driving not mandatory prerequisite for data entry position or that combining two part-time positions might result in applicant being able to work full-time hours – Dismissal unjustified – REMEDIES – No contributory conduct – $3,000 compensation appropriate – Office administrator |
| Abstract | Applicant employed by respondent as office administrator. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Applicant informed respondent needed to have operation on knee and would be away from work for three weeks. Respondent’s director (“M”) considered applicant would require longer absence based on applicant’s previous operation and arranged for independent contractor (“S”) to provide cover. Respondent claimed applicant had considerable amount of outstanding annual leave entitlement and when applicant’s surgery cancelled respondent instructed applicant to take leave. Respondent offered applicant extra week of sick leave in event surgery went ahead. Applicant complained after return to work training on new software introduced by S inadequate. M claimed applicant received two full days of training on software in addition to substantial amount of training provided by S. Respondent entered discussions with other business with view to merge two businesses. S appointed general manager. While preparing employment agreement for applicant, S claimed realised many of applicant’s tasks in position description could be undertaken by other employees after merger. Applicant claimed assumed would be moving to new premises after merger but told three days before move would be staying at old premises to sort out paperwork. M and S discussed applicant’s position in days after merger and subsequently discussed which of applicant’s tasks could be performed by other employees. At subsequent meeting (“first meeting”) respondent told applicant did not consider enough work available for full-time office administrator position after merger. Respondent stated could be casual contractor position and transport manager position available but applicant would need to work at night and drive a truck if required. Applicant stated knee problems made driving truck impossible. Applicant told respondent not prepared to consider part-time or night work. Applicant asked why not invited to bring support person to meeting and told meeting only for respondent to explain situation and applicant could bring support person to next meeting. At later meeting applicant stated was prepared to be flexible as to hours but wanted full-time work and not willing to work nights. Respondent claimed did not explain to applicant two part-time jobs could be combined as respondent considered jobs separate. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent entitled to require applicant to take annual leave under Holidays Act 2003, applicant agreed to take annual leave and no evidence applicant disadvantaged as a result. Applicant received training on new software and S’s claim spent many hours training applicant supported by production of 48 page user manual. No unjustified disadvantage. Re-evaluation of respondent’s operations as result of merger resulted in assessment full-time office administrator position no longer required. No evidence applicant’s position filled since applicant’s dismissal. Redundancy genuine. Although S realised applicant’s position able to be carried more efficiently by other employees if merger concluded, S did not have opportunity to discuss situation with M until after merger and M had not applied mind to question until this time. Respondent’s failure to communicate about applicant’s delayed move to new premises insensitive but not evidence of pre-determination. No pre-determined decision to make applicant’s position redundant. Although no requirement for respondent to advise applicant able to have representation at first meeting to explain situation, respondent expected applicant to be upset and fair and reasonable employer would have advised applicant could have representation. Respondent did not explain satisfactorily to applicant truck driving not mandatory prerequisite for data entry position or that combining two part-time positions might result in applicant being able to work full-time hours. Dismissal unjustified. REMEDIES: No contributory conduct. $3,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal); Compensation for humiliation etc ($3,000); Application dismissed (unjustified disadvantage); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103(1)(b);ERA s103A;ERA s114;Holidays Act 2003 s19 |
| Cases Cited | Aoraki Corp Ltd v McGavin [1998] 1 ERNZ 601; [1998] 3 NZLR 276;Cammish v Parliamentary Service [1996] 1 ERNZ 404;G N Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843; [1991] 1 NZLR 151;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Auckland_328.pdf [pdf 300 KB] |