| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 253 |
| Hearing date | 6 Jul 2011 |
| Determination date | 22 November 2012 |
| Member | M B Loftus |
| Representation | D Pine ; J Copeland |
| Location | Queenstown |
| Parties | Ross v Midtown Medical Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Parties disputed hours of work initially agreed when applicant commenced employment – Applicant claimed respondent attempted to unilaterally reduce applicant’s hours before made redundant – Authority found respondent failed to consult with applicant adequately before applicant made redundant and failed to consider alternative options to redundancy – Found although parties disputed work hours initially agreed, respondent’s evidence showed respondent sought to make significant variation to employment agreement without first consulting with applicant – Dismissal unjustified – REMEDIES - No contributory conduct - $5,000 compensation appropriate - Respondent to pay applicant $13,248 reimbursement of lost wages – ARREARS OF WAGES – Applicant sought arrears of wages – Found respondent accepted advised applicant $2,000 payment would be made although payment would be delayed due to respondent’s financial situation - Respondent to pay applicant $2,000 arrears of wages - Practice Nurse and Practice Manager |
| Abstract | Applicant employed as practice nurse and practice manager. Applicant claimed unjustifiably dismissed by respondent. Applicant claimed respondent attempted to unilaterally reduce applicant’s hours of work and subsequently made redundant without consultation. Respondent denied unilaterally changed applicant’s hours or made applicant redundant. Respondent claimed financial situation forced respondent to discuss applicant’s working hours but applicant refused to engage constructively with applicant about matter. Respondent claimed after several attempts to negotiate with applicant decided to temporarily reduce applicant’s hours. Applicant did not sign employment agreement (“EA”). Applicant claimed hours was available initially restricted by other employment but advised respondent could work fulltime in two months. Applicant claimed parties’ EA was for fulltime employment. Respondent managing director (“R”) denied employed applicant on fulltime basis and claimed could not afford fulltime employee. R claimed applicant unilaterally decided would increase work hours and needed applicant to reduce hours to level initially agreed by parties. R claimed when again raised matter applicant became upset and left workplace immediately after to commence holiday. Applicant claimed when returned from holiday was told by R hours would be reduced. Respondent requested applicant attend meeting and bring representative but told applicant meeting not disciplinary. Applicant claimed told at meeting would be made redundant and no other options available. R claimed after meeting applicant tore up number of letters applicant had been working on before left workplace. Applicant did not return to workplace. EA stated applicant would be paid for work as practice manager with $2,000 bonus to be paid to applicant after three months if respondent broke even.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: R advising applicant would be made redundant effective immediately amounted to dismissal. Even if applicant not expressly dismissed, respondent did not allow for ‘cooling period' and advertised for replacement following day. Respondent failed to consult with applicant adequately before applicant made redundant. Respondent failed to consider alternatives to redundancy. Although parties disputed work hours initially agreed, respondent’s evidence showed respondent sought to make significant variation to EA without first consulting with applicant. Even if accepted respondent’s evidence applicant did not provide feedback on decision, respondent failed to put applicant on notice respondent would continue with proposal without applicant’s input. Dismissal unjustified. REMEDIES: No contributory conduct. $5,000 compensation appropriate. Respondent to pay applicant $13,248 reimbursement of lost wages.;ARREARS OF WAGES: Respondent accepted advised applicant $2,000 payment would be made although payment would be delayed due to respondent’s financial situation. Respondent to pay applicant $2,000 arrears of wages. |
| Result | Applications granted (unjustified dismissal and arrears of wages) ; Compensation for humiliation etc ($5,000) ; Reimbursement of lost wages ($13,248) ; Arrears of wages ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA s124;ERA s128(2);Interpretation Act 1999 s7 |
| Cases Cited | Jinkinson v Oceana Gold (NZ) Ltd (2011) 9 NZELC 93,655 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Christchurch_253.pdf [pdf 196 KB] |