| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 106 |
| Hearing date | 24 Jul 2012 |
| Determination date | 24 September 2012 |
| Member | M Ryan |
| Representation | P mcBride ; P Shaw |
| Location | Wellington |
| Parties | Parbhu v Armstrong Prestige Wellington Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed unjustifiably dismissed by respondent - Applicant claimed unjustifiably disadvantaged by suspension, discriminated against, respondent breached good faith obligations towards applicant and sought arrears of wages – Authority found applicant’s redundancy not genuine - Found respondent’s actions not those of fair and reasonable employer – Found no evidence respondent genuinely consulted with applicant before decided to remove applicant from position – Found alternatively even if redundancy genuine, respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - REMEDIES - No contributory conduct - Respondent to pay applicant $11,050 reimbursement of lost wages - Interest payable - $1,750 compensation for loss of benefit appropriate - $12,000 compensation for unjustified dismissal appropriate - UNJUSTIFIED DISADVANTAGE – Found applicant discriminated against due to involvement in union activities – Found applicant unjustifiably disadvantaged by suspension – REMEDIES - $3,000 compensation for unjustified disadvantage appropriate - ARREARS OF WAGES – Found applicant owed commission earned by applicant before dismissal - Respondent to pay applicant $5,543 arrears of wages - Interest payable - GOOD FAITH – PENALTY - Respondent’s conduct amounted to deliberate, serious and sustained breaches of good faith obligations - $2,500 penalty appropriate - Brand Manager |
| Abstract | Applicant employed as brand manager. Applicant claimed pressured by respondent to return to sales representative role and unjustifiably dismissed by respondent when refused respondent’s request. Applicant claimed unjustifiably disadvantaged by suspension, discriminated against, respondent breached good faith obligations towards applicant and sought arrears of wages. Respondent claimed applicant resigned after respondent restructure. Respondent employee (“O”) claimed approached by respondent director (“A”) about managing some of respondent’s brands of cars. Brands of cars discussed with O included some applicant responsible for. Applicant claimed attended two meetings with A and respondent general manager (“C”) and refused respondent’s requests that step aside from brand management role. C and applicant’s friend claimed A told applicant was not suitable for management role and respondent had already decided applicant would be removed from current position. A again requested applicant step down at third meeting. Applicant advised respondent considering restructure and applicant’s role could be expanded. Respondent claimed applicant having difficulties managing staff, sought applicant’s comments and applicant told could take up sales representative role. Applicant told would be replaced by O. C claimed told by A applicant had resigned and to remove applicant if attempted to enter workplace. Applicant claimed told by C to “go now” and no point in applicant being at workplace. Applicant told by C had been suspended or placed on garden leave. Respondent claimed O’s role substantially different to applicant’s position.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority noted had previously declined respondent’s application for adjournment and advised respondent could arrange video conference if respondent unable to attend investigation meeting in person. Respondent provided unsigned brief of evidence. Authority noted unable to give weight to respondent’s evidence but referred to respondent information where relevant. Applicant’s and O’s employment agreements (“EA”) almost identical with exception of remuneration, sales volume responsibility and who party expected to have relationship with. O’s role when commenced employment same as role performed by applicant previously. Redundancy not genuine. Respondent intended to replace applicant with more experienced employee. Respondent’s actions not those of fair and reasonable employer. No evidence respondent genuinely consulted with applicant before decided to remove applicant from position. Alternatively, even if redundancy genuine, respondent’s actions not those of fair and reasonable employer. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $11,050 reimbursement of lost wages. Interest payable. $1,750 compensation for loss of benefit appropriate. $12,000 compensation for unjustified dismissal appropriate.;UNJUSTIFIED DISADVANTAGE: Applicant’s claim unjustifiably disadvantaged by respondent’s attempts to obtain applicant’s resignation linked to applicant’s claim unjustifiably dismissed and not appropriate to treat as separate matter. Applicant discriminated against due to involvement in union activities. Applicant unjustifiably disadvantaged by suspension. REMEDIES: $3,000 compensation for unjustified disadvantage appropriate.;ARREARS OF WAGES: Applicant owed commission earned by applicant before dismissal. Respondent to pay applicant $5,543 arrears of wages. Interest payable.;GOOD FAITH – PENALTY: Respondent’s conduct amounted to deliberate, serious and sustained breaches of good faith obligations. $2,500 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($11,050) ; Interest (5%) ; Compensation for humiliation etc ($12,000)(unjustified dismissal) ; Compensation for loss of benefit ($1,750) ; Compensation for humiliation etc ($3,000)(unjustified disadvantage) ; Arrears of wages ($5,543) ; Interest (5%) ; Penalty – good faith ($2,500)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4(1A)(c);ERA s4A;ERA s103(1)(c);ERA s103A;ERA s103A(3);ERA s104;ERA s107;ERA s119(2);ERA s124;ERA s128(2);ERA s128(3);ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Cases Cited | GN Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843 ; [1990] 1 NZLR 151;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Wang v Hamilton Multicultural Services Trust [2010] ERNZ 468 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Wellington_106.pdf [pdf 365 KB] |