| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 144 |
| Hearing date | 16 Nov 2012 |
| Determination date | 22 November 2012 |
| Member | G J Wood |
| Representation | L Watson ; J Rooney |
| Location | Wellington |
| Parties | Gupta v Infosys Technologies (Australia) Pty Ltd |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed on ground of redundancy – Authority found no doubt applicant had arguable case of unjustified dismissal given comparison between communication from chief executive employees would become employees of parent company and subsequent news only suitable position for applicant in India – Found respondent had no employees and great inconvenience to take on one employee on interim basis – Found appeared impracticable and unreasonable to require respondent to take on one employee permanently – Found applicant must take some responsibility for financial hardship in interim as delays in bringing application – Found balance of convenience and overall justice of case favoured respondent – Application for interim reinstatement dismissed – Senior project manager |
| Abstract | Applicant employed by respondent as senior project manager. Applicant sought interim reinstatement. Applicant claimed unjustifiably dismissed by respondent. Applicant’s employment agreement (“EA”) provided if respondent’s business to be undertaken by another entity respondent would negotiate with entity and encourage entity to offer affected employees employment on same or generally no less favourable terms and conditions of employment. Following concerns about applicant’s performance respondent extended applicant’s probationary period. Respondent’s chief executive told staff respondent to be integrated into parent company, current employees would become employees of parent company and matters such as employees’ roles and location would remain unchanged. Applicant raised grievance about concerns surrounding applicant’s probationary period. Respondent’s reply stated parent company had not identified role for applicant in New Zealand but had identified suitable role in India. Position not on same or generally no less favourable terms and conditions. After correspondence between parties applicant dismissed two months later. Two months later applicant raised grievance and three months after grievance raised applicant filed claim in Authority.;AUTHORITY FOUND –;INJUNCTION: No doubt applicant had arguable case of unjustified dismissal given comparison between communication from chief executive employees would become employees of parent company and subsequent news only suitable position for applicant in India. Arguable case of unjustified dismissal especially so given applicant only employee of respondent not transitioned to parent company. Respondent’s claim too large to consult with all employees did not appear consistent with respondent’s obligations. Damages would not be adequate remedy for applicant but respondent had no employees and great inconvenience to take on one employee on interim basis. Appeared impracticable and unreasonable to require respondent to take on one employee permanently. Applicant must take some responsibility for financial hardship in interim as delays in bringing application. Balance of convenience and overall justice of case favoured respondent. Application for interim reinstatement dismissed. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA |
| Cases Cited | Port of Wellington Ltd v Longwith [1995] 1 ERNZ 87 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Wellington_144.pdf [pdf 182 KB] |