| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 126 |
| Hearing date | 12 Jun 2012 |
| Determination date | 16 October 2012 |
| Member | G J Wood |
| Representation | R Burt ; S Hornsby-Geluk |
| Parties | McDonald v Chief Executive of the Ministry of Foreign Affairs and Trade |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed on ground of redundancy – Authority found review of applicant’s team undertaken for genuine reasons and respondent believed genuinely required more complex financial advice than provided through applicant’s position – Found fact manager upset by applicant’s actions not important factor in deciding whether applicant appointed to first position – Found no vacancy in second position – Found fair and reasonable employer would have given reasonable prior notice to applicant of meeting informing applicant position to be disestablished and reasonable opportunity to obtain representation – Found submissions of other employees and information held by review body, including terms of reference, relevant to continuation of applicant’s employment and should have been provided to applicant for comment – Found incumbent on applicant to identify retraining or redeployment options as applicant had undertaken to do and respondent had sufficient knowledge of applicant’s skills and experience that respondent’s decision no retraining opportunities available open to fair and reasonable employer – Dismissal unjustified – REMEDIES – No contributory conduct – $3,500 compensation appropriate – Senior finance adviser |
| Abstract | Applicant employed by respondent as senior finance adviser. Applicant claimed unjustifiably dismissed by respondent. Applicant transferred to new team and claimed part of plan to remove applicant from position involved primarily with procurement rather than finance. Respondent undertook review of applicant’s team. Applicant claimed review conducted with unreasonable haste and evidence of pre-determination. Applicant informed outcome of review applicant’s position disestablished but applicant not given proper forewarning of meeting or opportunity to obtain representation. Respondent denied applicant’s request for copies of other employees’ feedback on review, copies of terms of reference or full copies of documents sent to group making decisions on redundancies. Applicant informed position disestablished. Applicant upset manager (“S”) and claimed being targeted unfairly when spoken to by applicant’s manager (“M”). Applicant told no redeployment options and respondent attempted to give applicant letter terminating applicant’s employment on notice. Respondent decided not to issue notice after applicant’s representative claimed respondent had not complied with obligations under collective employment agreement (“CEA”). Consultation document on review of procurement area about to be completed and applicant considered position could become available. At meeting to discuss redeployment options parties discussed possible vacant role (“first position”) in procurement area and applicant invited and undertook to propose any other redeployment options. First position reported to S and applicant unsuccessful in application for first position. Applicant given notice of termination of employment. Applicant sought redeployment to different position (“second position”) as applicant heard position about to become vacant. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISAL: Applicant’s position covered mainly financial functions rather than procurement work. Review of applicant’s team undertaken for genuine reasons, although applicant had point M should not have been seen to be running restructuring as M’s position changed to some degree. Respondent believed genuinely required more complex financial advice than provided through applicant’s position. M’s statement in e-mail suggesting applicant could be given notice and dismissed unless redeployment option found within notice period not inconsistent with CEA. Unlikely respondent’s staff involved in actions to deliberately remove applicant from position at respondent. Fact S upset by applicant’s actions not important factor in deciding whether applicant appointed to first position. Incumbent in second position had not formally given notice of resignation and respondent decided not to fill position after incumbent left. No vacancy in second position. Fair and reasonable employer would have given reasonable prior notice to applicant of meeting informing applicant position to be disestablished and reasonable opportunity to obtain representation. Submissions of other employees and information held by review body, including terms of reference, relevant to continuation of applicant’s employment and should have been provided to applicant for comment. Open to respondent to give applicant notice when first attempted to do so as requirement under CEA for parties to meet to reach agreement on appropriate options arose after notice given. Incumbent on applicant to identify retraining or redeployment options as applicant had undertaken to do and respondent had sufficient knowledge of applicant’s skills and experience that decision no retraining opportunities available open to fair and reasonable employer. Dismissal unjustified. REMEDIES: No contributory conduct. $3,500 compensation appropriate. |
| Result | Application granted; Compensation for humiliation etc $3,500; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(3)(c);ERA s103A(4);ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Vice-Chancellor of Massey University v Wrigley (2011) 9 NZELC 93,782 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Wellington_126.pdf [pdf 215 KB] |