| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 430 |
| Hearing date | 12 Sep 2012 |
| Determination date | 30 November 2012 |
| Member | R Larmer |
| Representation | M Donovan ; A Steele |
| Location | Auckland |
| Parties | Allan v Mobile Shop Ltd and Anor |
| Other Parties | Suny Management Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Authority found applicant entered into two separate employment relationships with respondents which ran concurrently until applicant dismissed – UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Poor Performance – BARGAINING - Applicant claimed unjustifiably disadvantaged by aggressive behaviour of respondents' director (S") and role being advertised before applicant dismissed and unjustifiably dismissed – Applicant claimed S unfairly bargained with applicant when entered into employment agreement with second respondent - Found respondents’ director (“S”) acting as agent of respondents and applicant’s employment with respondents ended on same date – Found respondent jointly and severally unjustifiably disadvantaged applicant by advertising applicant’s role before dismissal - Found first respondent failed to meet tests set out in s103A(3) Employment Relations Act 2000 – Found S failed to fairly or properly raise alleged performance concerns with applicant and S’s general discussion about business process did not put applicant on notice employment in jeopardy - Dismissal by first respondent unjustified – Found S unfairly bargained with applicant and applicant did not understand effect of EA’s trial period - Parties directed to mediation to resolve trial period matter – Authority noted if trial period struck out, would find applicant’s dismissal from second respondent also unjustified but would not award additional remedies - REMEDIES - No contributory conduct - Respondent to pay applicant three months’ lost remuneration, parties to determine quantum - Interest payable - $1,150 compensation for loss of benefits appropriate - $6,000 compensation appropriate for unjustified dismissal - $1,500 compensation appropriate for unjustified disadvantage - GOOD FAITH – PENALTY – Applicant claimed respondents breached good faith obligations and sought penalties – Found respondents breached good faith obligations when advertised for applicant’s replacement before applicant dismissed – Found second respondent breached good faith obligations by not meeting statutory requirements when bargaining for applicant’s EA – Found evidence did not show S intended to undermine applicant’s employment - No penalty – Found respondents breached implied term of EA but behaviour already addressed by other remedies - No penalty - Found further remedies for breaches of good faith and implied term of EA could not be determined until parties attempted mediation – ARREARS OF WAGES – Applicant sought wages in lieu of notice – Found first respondent dismissed applicant without notice but already addressed by other remedies - No arrears of wages - National Sales Manager" |
| Abstract | Applicant employed as national sales manager. Applicant claimed unjustifiably disadvantaged by aggressive behaviour of respondents' director and role being advertised before applicant dismissed and claimed unjustifiably dismissed. Applicant claimed first respondent breached good faith obligations, S unfairly bargained with applicant, sought penalties against first respondent and S and sought wages in lieu of notice. S claimed applicant justifiably dismissed due to applicant’s poor performance. Respondents closely connected and S claimed unclear about which areas of business were responsibility of first respondent or second respondent. S claimed second respondent employed all staff and first respondent operated sales business. S claimed second respondent had no assets. S claimed first respondent should not be party to proceedings as did not employ applicant. S sought applicant’s help with recruiting staff and applicant employed by second respondent as national sales manager. S claimed mistakenly made applicant employment offer month earlier at first respondent not second respondent (“first offer”). A claimed accepted first offer with first respondent and was jointly and concurrently employed by respondents. S claimed terms of employment not settled until applicant signed employment agreement (EA") with second respondent month later (“second offer”). S denied applicant worked for first respondent before second offer signed. EA included trial period but applicant claimed could bring personal grievance as was dismissed outside 90 day trial period, was not new employee when signed EA or trial period should be struck out as S unfairly bargained with applicant. S claimed employment offer sent to applicant was only conditional offer and applicant could not accept offer as all of conditions had not been fulfilled. Parties agreed on purchase of vehicle for applicant’s use. First offer stated when applicant accepted offer, new vehicle for applicant’s use would be purchased. Applicant claimed dismissed by second respondent day after trial period expired.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Applicant employed by first respondent although some uncertainty as to start date. Unlikely S would have already purchased vehicle for applicant’s use if applicant had not already accepted first offer. Did not accept S’s evidence mistakenly offered applicant employment at first respondent instead of second respondent. First offer capable of acceptance. Applicant entered into two separate employment relationships with respondents which ran concurrently until applicant dismissed. Signing of second offer was mere formality because applicant and first respondent had already entered into employment relationship. Wage payments into applicant’s bank account also indicated applicant employed by first respondent.;UNJUSTIFIED DISMISSAL: S acting as agent of respondents and applicant’s employment with respondents ended on same date. Second respondent paid applicant one week’s wages in lieu of notice but first respondent dismissed applicant without notice. First respondent breached good faith obligations towards applicant as did not give applicant information relevant to ongoing employment or opportunity to comment on information. First respondent failed to meet tests set out in s103A(3) Employment Relations Act 2000. S failed to fairly or properly raise alleged performance concerns with applicant and S’s general discussion about business process did not put applicant on notice employment in jeopardy. S did not set out performance objectives or identify how applicant’s achievement of objectives would be assessed. Applicant only aware of perceived difficulties less than one working day before dismissal. Dismissal by first respondent unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant three months’ lost remuneration, parties to determine quantum. Interest payable. $1,150 compensation for loss of benefits appropriate. $6,000 compensation appropriate.;BARGAINING: S did not advise applicant of right to seek independent advice prior to signing EA, did not give applicant reasonable opportunity to seek advice and did not give applicant opportunity to negotiate proposed EA. S unfairly bargained with applicant and applicant did not understand effect of EA’s trial period. Parties directed to mediation to resolve trial period matter. EA’s trial period valid and applicant was new employee of second respondent when signed EA as had not previously been employed by entity. Applicant commenced employment with second respondent day after signed EA. Applicant dismissed within 90 day trial period. Authority noted could strike out trial period from EA as remedy for unfair bargaining claiming and applicant not prevented from bringing unjustified dismissal grievance against second respondent. If trial period struck out, Authority noted would find applicant’s dismissal from second respondent also unjustified but would not award additional remedies.;UNJUSTIFIED DISADVANTAGE: Not satisfied S acted in unjustifiably aggressive or dismissive manner towards applicant. S advertised role and intended successful candidate would replace applicant. Respondent jointly and severally unjustifiably disadvantaged applicant by advertising applicant’s role before dismissal. REMEDIES: $1,500 compensation appropriate.;GOOD FAITH - PENALTY: Respondents breached good faith obligations when advertised for applicant’s replacement before applicant dismissed. Second respondent breached good faith obligations by not meeting statutory requirements when bargaining for applicant’s EA. Evidence did not show S intended to undermine applicant’s employment. No penalty. Respondents breached implied term of EA but behaviour already addressed by other remedies. No penalty. Further remedies for breaches of good faith and implied term of EA could not be determined until parties attempted mediation.;ARREARS OF WAGES: First respondent dismissed applicant without notice but already addressed by other remedies. No arrears of wages." |
| Result | Applications granted (practice and procedure, unjustified dismissal, bargaining, unjustified disadvantage and good faith) ; Compensation for humiliation etc ($1,500)(unjustified disadvantage) ; Compensation for humiliation etc ($6,000)(unjustified dismissal) ; Reimbursement of lost wages (parties to determine quantum) ; Interest (5%) ; Compensation for loss of benefit ($1,000)(vehicle) ; Compensation for loss of benefit ($150)(reimbursement of fuel costs) ; Applications dismissed (penalty and arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4A;ERA s4A(b)(ii);ERA s4A(b)(iii);ERA s63A;ERA s63A(2);ERA s63A(2)(b);ERA s63A(2)(c);ERA s 63(3);ERA s67A;ERA s67A(2);ERA s67A(2)(a);ERA s68(2)(d);ERA s69;ERA s103A;ERA s103A(3);ERA s103A(5);ERA s124;ERA s128(2);ERA s134;ERA s164;ERA s164(a)(i);ERA s164(a)(ii);ERA s164(d);ERA Second Schedule cl11;Judicature Act 1908 s83;Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Blackmore v Honick Properties Ltd (2011) 9 NZELC 93,980 |
| Number of Pages | 27 |
| PDF File Link: | 2012_NZERA_Auckland_430.pdf [pdf 874 KB] |