| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 275 |
| Hearing date | 2 Mar 2012 |
| Determination date | 17 December 2012 |
| Member | H Doyle |
| Representation | A Sharma ; R Webster |
| Parties | Arrowsmith and Ors v Brightwater Engineers Ltd |
| Other Parties | Arrowsmith, Doocey, Colquhoun |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicants claimed unjustifiably dismissed by respondent – Authority found redundancies genuine as result of large project ending – Found no openness to revisit or make any corrections or changes to skills matrix and limited information provided about basis of skills matrix – Found preparation of skills matrix not sufficiently objective, open and transparent so as to meet requirement of fairness and good faith – Found element of predetermination in decision to dismiss applicants – Found information in manager’s or supervisors’ minds regarding applicants’ willingness to perform certain tasks or performance concerns not disclosed to applicants before decision made – Found applicants unable to comment on skills matrix when no names on matrix other than own and no prior discussion about applicants’ skills or basis applicants assessed on – Dismissals unjustified – REMEDIES – No contributory conduct – Respondent to pay first applicant $18,224 reimbursement of lost wages – Respondent to pay second applicant $2,700 reimbursement of lost wages – Respondent to pay fourth applicant $8,643 reimbursement of lost wages – $1,519 compensation for loss of holiday appropriate (first applicant) – Interest payable – $22 compensation for loss of KiwiSaver benefit appropriate (first applicant) – $12,000 compensation appropriate (first, second and fourth applicants) – $10,000 compensation appropriate (third applicant) – Fitters, welders and yardman |
| Abstract | First, second and fourth applicants employed by respondent as fitters and welders and third applicant employed by respondent as yardman. Applicants claimed unjustifiably dismissed by respondent. First, second and third applicants handed memorandum at meeting. Memorandum stated proposal for potential redundancies as large project nearing completion and sought suggestions to avoid redundancies. Memorandum stated employees to be retained would be selected based on respondent’s estimation of individual skills and apprentices would not be considered. Fourth applicant on leave and did not receive memorandum in post. Five days later further memorandum stated redundancies necessary and applicants handed letter at meetings advising of proposal to make positions redundant. At further meeting applicants provided with skills matrix prepared several months earlier used to score potentially affected employees against specified skills. Apprentices included in scoring process. Applicants claimed not provided with detailed information about how scored, had not been interviewed about skills and did not understand skills respondent wanted to retain. Applicants claimed should have been scored for certain skills. Respondent’s conclusion first applicant only wanted to do certain task not put to first applicant. Third applicant not told duties would be assumed by yard foreman. Fourth applicant claimed could not understand why scores so low given fourth applicant had achieved above requirement for trade certification qualification. Applicants dismissed. Workshop manager (“F”) claimed instructed supervisors to score employees on how employees performed rather than tasks employees could perform. Applicants claimed redundancies not genuine as respondent’s financial situation not as bad as claimed and respondent advertised for new employees after applicants’ dismissals.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of confidential information supplied by respondent. Redundancies genuine as result of large project ending and concern no significant projects to replace current project. F’s instruction to supervisors to score employees based on how employees performed rather than tasks employees could perform did not sit easily with statement in initial memorandum respondent would base assessment on individual skills and desire to retain as many skills as possible. Skills matrix prepared months before announcement of need for redundancies and applicants should have had opportunity to comment on document before decisions made. No openness to revisit or make any corrections or changes to skills matrix at final meeting and limited information provided about basis of scoring, including skills respondent wanted to retain. Preparation of skills matrix not sufficiently objective, open and transparent so as to meet requirement of fairness and good faith. Element of predetermination in decision as respondent relied on skills matrix without being genuinely prepared to change matrix and F advised other employee after final meeting would be no further meetings despite advising no decision made. Information in F’s or supervisors’ minds regarding applicants’ willingness to perform certain tasks or performance concerns not disclosed to applicants. Applicants unable to comment on skills matrix when no names on matrix other than own and no prior discussion about applicants’ skills or basis applicants assessed on. Decision to dismiss made by respondent’s chief executive but chief executive not at final meeting and applicants had no opportunity to address chief executive directly with concerns about applicants’ selection for redundancy. Dismissals unjustified. REMEDIES: No contributory conduct. Authority unable to conclude first, second and fourth applicants would have been dismissed if proper selection process followed. Respondent to pay first applicant $18,224 reimbursement of lost wages. Respondent to pay second applicant $2,700 reimbursement of lost wages. Respondent to pay fourth applicant $8,643 reimbursement of lost wages. $1,519 compensation for loss of holiday appropriate (first applicant). Interest payable. $22 compensation for loss of KiwiSaver benefit appropriate (first applicant). $12,000 compensation appropriate (first, second and fourth applicants). $10,000 compensation appropriate (third applicant). |
| Result | Applications granted ; Reimbursement of lost wages ($18,224.09)(first applicant)($2,700)(second applicant)($8,643.69)(fourth applicant) ; Compensation for loss of benefit ($1,519.65)(holiday)(first applicant) ; Interest (5%) ; Compensation for loss of benefit ($22.40)(KiwiSaver)(first applicant) ; Compensation for humiliation etc ($12,000)(first, second and fourth applicants)($10,000)(third applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A);ERA s4(1A)(c);ERA s103A;ERA Second Schedule cl11;Judicature Act 1908;Judicature Act 1908 s87(3) |
| Cases Cited | G N Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843 ; [1991] 1 NZLR 151;Jinkinson v Oceana Gold (NZ) Ltd (No 2) (2011) 9 NZELC 93,655;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Vice-Chancellor of Massey University v Wrigley [2011] ERNZ 138 |
| Number of Pages | 27 |
| PDF File Link: | 2012_NZERA_Christchurch_275.pdf [pdf 329 KB] |