| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 156 |
| Hearing date | 22 Nov 2012 |
| Determination date | 10 December 2012 |
| Member | M Ryan |
| Representation | S Webster ; G Tayler |
| Location | Napier |
| Parties | Chamberlain v Neocom Ltd |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Authority found arguable case applicant unjustifiably dismissed – Found respondent’s business sold and applicant’s position made redundant – Found reinstatement not practicable or reasonable – Found balance of convenience favoured respondent – Found overall justice of case did not favour grant of interim reinstatement – Application for interim reinstatement dismissed |
| Abstract | Applicant sought interim reinstatement. Applicant claimed unjustifiably dismissed by respondent. Applicant claimed respondent did not consult with applicant properly about proposal to sell business. Applicant took day off from work and requested meeting to discuss future employment. Applicant consumed at least three bottles of wine and during meeting made derogatory statements, used offensive language and threatened to harm respondent. Applicant claimed respondent aware applicant intoxicated before meeting and fair and reasonable employer would not have proceeded with meeting. Later same evening, applicant accessed respondent’s website host, deactivated account and archived other users of account. Applicant claimed seeking information about work performance, actions inadvertent and corrected next day. Following disciplinary process applicant dismissed. Applicant accepted no longer role to perform or premises in which to work but claimed practicable and reasonable to be placed on gardening leave allowing payment of notice following redundancy or offer of employment from purchaser of business.;AUTHORITY FOUND –;INJUNCTION: Disputed matters between parties including whether respondent complied with obligation to consult applicant properly about sale of business and whether decision to dismiss fair and reasonable. Arguable case applicant unjustifiably dismissed. Respondent’s business sold, applicant’s position made redundant and order for interim reinstatement would not recapture employment circumstances prior to dismissal or options sought by applicant. Reinstatement not practicable or reasonable. No evidence of applicant’s financial state showing damages would not be adequate remedy and insufficient information balance of convenience should favour applicant as consequence of general perception applicant’s reputation had been impacted negatively. Considerable inconvenience to respondent if required to continue to employ applicant. Balance of convenience favoured respondent. Overall justice of case did not favour grant of interim reinstatement. Application for interim reinstatement dismissed. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s125;ERA s125(2);ERA s127(1);ERA s127(2);ERA s127(4) |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] ERNZ 292;Hunter v Nationwide Computers (NZ) Ltd [1994] 1 ERNZ 70;Lewis v Howick College Board of Trustees (2010) 7 NZELR 539;McKean v Ports of Auckland Ltd [2011] ERNZ 311;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1992] 3 ERNZ 243;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414;Port of Wellington Ltd v Longwith [1995] 1 ERNZ 87 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Wellington_156.pdf [pdf 180 KB] |