| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 397 |
| Hearing date | 28 Aug 2012 |
| Determination date | 14 November 2012 |
| Member | J Crichton |
| Representation | S Hornsby-Geluk ; A Caisley |
| Location | Auckland |
| Parties | Andersen v Fullers Group Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed discriminated against on basis of age and unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed on ground of redundancy – Authority found applicant’s age not causative of respondent’s decision to exclude onboard services position from consideration as redeployment option – No unjustified disadvantage – Found while applicant had no opportunity to make submissions regarding lack of work for applicant’s position, no complaint from applicant during consultation process about genuineness of redundancy – Found no evidence of improper motive from respondent – Found redundancy genuine – Found respondent went to considerable trouble to provide applicant opportunity to have significant input into restructuring process – Found respondent did not simply go through motions in considering redeployment options – Found respondent entitled as employer to determine if person seeking redeployment had requisite skills and experience to fulfil role – Dismissal justified – Shipwright |
| Abstract | Applicant employed by respondent as shipwright. Applicant claimed discriminated against on basis of age and unjustifiably dismissed by respondent. Following review of respondent’s organisation applicant informed of proposal to disestablish applicant’s role and provided with ‘maintenance review’ document. Applicant claimed two reasons advanced in document not basis for disestablishing applicant’s role. Applicant invited to further meeting to explore alternatives to redundancy and termination. Applicant claimed parties did not discuss need for redundancy but focused only on whether other roles available for applicant. At further meeting union claimed respondent obstructive and refused to contemplate any suggestions made. Union claimed respondent dismissed possibility of applicant undertaking adult apprenticeship. Respondent claimed apprenticeship would take significant period of time and not be cost-effective. Respondent rejected applicant’s suggestion could be deployed as master due to applicant’s previous unsatisfactory experience as master and fact previous experience some time ago. Respondent discounted suggestion applicant could serve as maintenance storeperson as no prospect of internal training. Parties discussed applicant taking fixed term position as onboard services crew. Applicant claimed told by respondent’s asset manager (“M”) applicant would not fit in with young people texting on ferries. M denied making observation. Respondent claimed union adamant fixed term onboard services role unacceptable. At further meeting respondent indicated applicant could not perform onboard services role as would cause friction and confirmed subsequently meant friction caused by applicant being too old. Applicant dismissed. After union approached respondent subsequently, applicant given six month fixed term freight assistant position.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant’s age factor taken into account in respect of suitability for onboard services role but not causative of respondent’s decision to exclude position from consideration. No unjustified disadvantage. ‘Maintenance review’ document did not advance any particular case for restructuring but clear at investigation meeting respondent found it difficult to produce sufficient work for applicant’s position. While applicant had no opportunity to make submissions regarding lack of work, no complaint from applicant during consultation process about genuineness of redundancy. No evidence of improper motive from respondent and respondent engaged in review process over significant period of time with applicant informed of review almost a year before dismissal. Redundancy genuine. Respondent went to considerable trouble to provide applicant opportunity to have significant input into restructuring process. While parties’ discussions focused on redeployment options, matters traversed focused on issues parties wanted to discuss. Respondent did not simply go through motions in considering redeployment options. Respondent entitled as employer to assess qualifications, skills and experience of applicant for each role in contemplation and to determine if person seeking redeployment had requisite skills and experience to fulfil role. Difficult not to see respondent offering applicant fixed term position after dismissal as evidence of respondent’s good faith in engaging with applicant. Dismissal justified. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s105(1)(i);Human Rights Act 1993 s21(1)(i) |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Auckland_397.pdf [pdf 194 KB] |