| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 4 |
| Hearing date | 11 Oct 2012 - 6 Nov 2012 (2 days) |
| Determination date | 04 January 2013 |
| Member | R A Monaghan |
| Representation | A Goldstone ; T Yeoman |
| Location | Auckland |
| Parties | Buffini v NZ Tax Returns Ltd & Anor |
| Other Parties | NZ Labour Hire Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Authority found applicant employed by first respondent – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Authority found redundancy genuine but defect in consultation process due to respondent’s failure to advise applicant of decision to focus on existing business – Dismissal unjustified – REMEDIES – No contributory conduct - $2,000 compensation appropriate – PENALTY – GOOD FAITH – Applicant sought penalty for respondents’ breach of good faith obligations – Defect in consultation process did not meet standard required for successful penalty – No penalty – Business development manager |
| Abstract | Applicant employed as business development manager. Applicant claimed unjustifiably dismissed. Applicant sought penalty for respondents’ breach of good faith obligations. First respondent claimed to be applicant’s employer. Second respondent contracted first respondent to provide management services. Applicant initially employed by first respondent to provide services to second respondent. First respondent and applicant parties to employment agreement. First and second respondent’s director (“Y”) set up additional company (“PHL”) and applicant transferred to new branch. PHL also contracted first respondent to provide management services. Y claimed applicant’s branch not achieving billable hours required to be profitable. Y advised staff branch losing money and restructuring and redundancies possible. Y met with staff two days later to raise concerns over economic climate. Applicant suggested resigning and Y said not necessary. Y asked staff for feedback and proposals for addressing concerns. Y met with staff two days later and had detailed discussion with applicant. Y concluded redundancies necessary. Applicant advised position to be disestablished with immediate effect. Applicant dismissed. Applicant claimed reason for redundancy to replace applicant with lower paid staff member (“R”). Y acknowledged cost played large part in redundancy but applicant’s role developing new business was to be disestablished and R’s role of serving existing clients retained. Applicant claimed respondents did not consult applicant on disestablishment of role.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Applicant employed by first respondent.;UNJUSTIFIED DISMISSAL: Applicant advised of possible redundancy. Redundancy situation genuine and reason for redundancy of applicant’s position genuine. First respondent failed to advise applicant of decision to focus on existing business rather than new business so applicant unable to respond to main reason for redundancy. Defect in consultation process and applicant treated unfairly. Dismissal unjustified. REMEDIES: No contributory conduct. $2,000 compensation appropriate.;PENALTY – GOOD FAITH: Defect in consultation process did not meet standard required for successful penalty claim. No penalty. |
| Result | Application granted (unjustified dismissal); Compensation for humiliation etc ($2,000); Applications dismissed (practice and procedure)(penalty – good faith); costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 – ERA s4(1) – ERA s4(1A) - ERA s103A – ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 9 |
| PDF File Link: | 2013_NZERA_Auckland_4.pdf [pdf 177 KB] |