| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 124 |
| Hearing date | 27 Sep 2012 |
| Determination date | 12 October 2012 |
| Member | T MacKinnon |
| Representation | S Hornsby-Geluk ; A Shakespeare |
| Parties | Solomon v Hokotehi Moriori Trust and Ors |
| Other Parties | Entwistle, King, Solomon, Solomon, King |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by first respondent’s suspension of applicant – Authority found first respondent able to rely on suspension provision in applicant’s unsigned employment agreement (“EA”) – Found unreasonable for first respondent to refuse to grant full extension of time requested by applicant to respond to suspension proposal – Found minutes of meeting between second, third, fourth, fifth and sixth respondents and evidence before Authority indicated decision to suspend applicant predetermined – Applicant unjustifiably disadvantaged by first respondent’s suspension of applicant – REMEDIES – Reinstatement practicable and reasonable – No contributory conduct – First respondent to pay applicant reimbursement of lost wages, parties to determine quantum – $8,000 compensation appropriate – INJUNCTION – Applicant sought injunction restraining respondents from progressing disciplinary investigation against applicant – Found first respondent entitled to commence disciplinary investigation and possible grounds for some of first respondent’s concerns – Application for injunctive relief declined – PENALTY – Applicant sought penalty for respondents’ inciting breach of applicant’s EA – Found remedies awarded to applicant for unjustified disadvantage sufficient and imposition of penalty would not help restore good working relationships – No penalty – General manager |
| Abstract | Applicant employed by first respondent as general manager. Applicant claimed unjustifiably disadvantaged by first respondent’s suspension of applicant. Applicant sought injunction restraining respondents from progressing disciplinary investigation against applicant and penalty for respondents’ inciting breach of applicant’s employment agreement (“EA”). Applicant responsible for managing election of three members of first respondent. Applicant e-mailed members of first respondent announcing result and that sixth respondent had lost place on first respondent. Sixth respondent purported to cancel election and call special meeting of first respondent to discuss election process. Applicant issued public notice declaring election result and that sixth respondent not re-elected and no longer chair of first respondent. Following meeting held by second, third, fourth, fifth and sixth respondents, sixth respondent wrote to applicant raising concerns applicant undermining first respondent in manner possibly amounting to serious misconduct and proposing to suspend applicant. Sixth respondent sought response from applicant within around five hours of applicant receiving letter. Applicant sought extension to end of next day as claimed important to meet applicant’s lawyer in person but sixth respondent allowed extension only to middle of next day. Applicant suspended. Applicant claimed no EA in place as EA drafted by first respondent’s lawyers not signed by either party.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: First respondent entitled to investigate allegations concerning applicant’s conduct surrounding election. Applicant agreed at investigation meeting unsigned EA governed parties’ relationship and first respondent able, therefore, to rely on suspension provision in EA. Sixth respondent conceded no disadvantage in not granting full extension of time sought by applicant to respond to suspension proposal. Respondents had recommended applicant seek legal advice and aware of constraints of travel from Chatham Islands to enable applicant to meet lawyer personally. First respondent had previously given sixth respondent latitude when sixth respondent’s reputation at stake and sixth respondent had placed importance on ability to meet representative personally. Unreasonable for first respondent to refuse to grant full extension of time requested by applicant to respond to suspension proposal. Minutes of meeting between second, third, fourth, fifth and sixth respondents and evidence before Authority indicated decision to suspend applicant predetermined. Applicant unjustifiably disadvantaged by first respondent’s suspension of applicant. REMEDIES: Reinstatement practicable and reasonable. No contributory conduct. First respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $8,000 compensation appropriate.;INJUNCTION: First respondent entitled to commence disciplinary investigation and possible grounds for some of first respondent’s concerns including applicant’s acknowledgement release of election results premature. Possible that fair process could result in some form of disciplinary action. Application for injunctive relief declined.;PENALTY: Remedies awarded to applicant for unjustified disadvantage sufficient and imposition of penalty would not help restore good working relationships. No penalty. |
| Result | Application granted (unjustified disadvantage); Reinstatement ordered; Reimbursement of lost wages (parties to determine quantum); Compensation for humiliation etc ($8,000); Applications dismissed (injunction)(penalty); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s134(2) |
| Cases Cited | Birss v Secretary for Justice [1984] 1 NZLR 513;Edwards v Two Degrees Mobile Ltd [2012] NZERA Auckland 342;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253;Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Wellington_124.pdf [pdf 225 KB] |