| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 418 |
| Hearing date | 18 Sep 2012 |
| Determination date | 26 November 2012 |
| Member | R A Monaghan |
| Representation | P Robertson (in person) ; B Thain |
| Parties | Robertson v Arcad Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether unjustified disadvantage grievance raised within 90 days – Authority found action amounting to unjustified disadvantage grievance was issuing of warning rather than failure to withdraw warning – Found elements necessary to establish lack of justification for warning within applicant’s knowledge when warning issued – Found unjustified disadvantage grievance not raised within 90 days – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed on ground of redundancy – Found senior digital designer (“R”) had breadth of skills and experience in areas applicant less skilled and experienced in – Found respondent entitled to retain R’s position – Found respondent should have discussed reservations about applicant’s qualifications and experience in considering applicant’s ability to perform at more senior level before decision to advertise senior digital designer position made – Dismissal unjustified – REMEDIES – Contributory conduct (percentage unspecified) – Respondent to pay applicant $5,000 reimbursement of lost wages – $3,000 compensation appropriate – COUNTERCLAIM – PENALTY – GOOD FAITH – Respondent sought penalty for applicant’s breach of good faith and breach of employment agreement (“EA”) – Found underhanded way applicant went about obtaining material from another employee’s computer amounted to act of bad faith – $500 penalty appropriate – No penalty for breach of EA as not appropriate to penalise applicant twice for same actions – Graphic designer |
| Abstract | Applicant employed by respondent as graphic designer. Applicant claimed unjustifiably disadvantaged by verbal warning and unjustifiably dismissed by respondent. Applicant presented with areas of concern about applicant’s performance without supporting detail at meeting and told applicant would receive verbal warning if areas not addressed. One week later applicant told would receive verbal warning. Applicant given verbal warning at subsequent meeting (“warning meeting”). Respondent provided further detailed information about concerns subsequently, applicant responded to respondent’s concerns and respondent thanked applicant for response without further mention of verbal warning (“respondent’s e-mail”). Applicant raised grievance four months after warning meeting. Applicant claimed 90 day period for raising grievance commenced with respondent’s e-mail amounting to failure to withdraw warning. Respondent decided restructure necessary and proposed disestablishing applicant’s position. Three days later senior digital designer (“R”) resigned. Applicant told position disestablished, senior digital designer position (“senior position”) to be advertised and applicant encouraged to apply. After respondent asked again subsequently whether senior position of interest, applicant claimed senior position essentially same as applicant’s position and refused to apply. Applicant claimed saw text of advertisement for senior position demonstrating position substantially similar to applicant’s position. Applicant dismissed. Applicant claimed process of selection between applicant and R should have been in place from outset. Applicant claimed should have been redeployed to senior position after R’s resignation. Respondent claimed obligations under s4(1A) Employment Relations Act 2000 (“ERA”) to be active and constructive in establishing and maintaining a productive employment relationship and to be responsive and communicative did not extend to obligation to offer applicant different position from one applicant engaged to perform. Respondent sought penalty for applicant’s breach of good faith and breach of employment agreement (“EA”) by accessing another employee’s computer and e-mail account. Applicant admitted accessing computer and e-mail account of production manager because wanted to gather material in support of grievance and did not believe respondent would supply information.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Action amounting to unjustified disadvantage grievance was issuing of warning rather than failure to withdraw warning. Elements necessary to establish lack of justification for warning within applicant’s knowledge when warning issued. No arrangement between parties to delay warning decision until after applicant provided response to detailed information or to reconsider warning. Unjustified disadvantage grievance not raised within 90 days.;UNJUSTIFIED DISMISSAL: R had breadth of skills and experience in areas applicant less skilled and experienced in, for which R recruited by respondent and which respondent sought to retain. Respondent entitled to retain R’s position. Advertisement seen by applicant draft and not text of advertisement actually placed. Conceivable obligation under s4(1A) ERA could mean redeployment of employee to position not substantially similar to disestablished position yet within employee’s skills and experience. No obligation to offer employee different position but obligation to engage in meaningful way about reasonable alternatives to dismissal. Although applicant should not have been offered senior position as need for applicant to up-skill, respondent should have discussed reservations about applicant’s qualifications and experience in considering applicant’s ability to perform at more senior level before decision to advertise senior position made. Dismissal unjustified. REMEDIES: Applicant should have indicated interest in senior position, engaged with respondent about part time contract and accepted offer of job search assistance. Contributory conduct (percentage unspecified). Respondent to pay applicant $5,000 reimbursement of lost wages. $3,000 compensation appropriate.;COUNTERCLAIM – PENALTY – GOOD FAITH: Underhanded way applicant went about obtaining material amounted to act of bad faith. Applicant had no right to access another employee’s computer and e-mail in way applicant did. $500 penalty appropriate. No penalty for breach of EA as not appropriate to penalise applicant twice for same actions. |
| Result | Applications granted (unjustified dismissal)(counterclaim – penalty – good faith) ; Contributory conduct (percentage unspecified) ; Reimbursement of lost wages ($5,000) ; Compensation for humiliation etc ($3,000) ; Penalty ($500)(payable to respondent) ; Application dismissed (raising personal grievance) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s103A;ERA s103A(3);ERA s103A(5);ERA s114(1);ERA s124;ERA s133;ERA s136(2);Privacy Act 1993 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Jinkinson v Oceana Gold (NZ) Ltd (No 2) (2011) 9 NZELC 93,655;New Zealand Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739 |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Auckland_418.pdf [pdf 249 KB] |