| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 32 |
| Hearing date | 23 Jan 2013 |
| Determination date | 25 March 2013 |
| Member | M Ryan |
| Representation | B Buckett ; J Burney |
| Parties | Milne v New Leaf Beauty Therapy Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent - Authority found respondent consulted with applicant regarding respondent’s proposal to reduce applicant’s guaranteed hours but respondent did not discuss with applicant possibility applicant’s position surplus to requirements if parties could not reach agreement – Found no basis for proposition applicant should have drawn inferences from general discussions about respondent’s downturn in business to lead applicant to conclude proposal to disestablish applicant’s position being considered in absence of agreement between parties – Found respondent not able to form view applicant’s position surplus to requirements without engaging in process of genuine consultation and providing applicant opportunity to respond – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $4,312 reimbursement of lost wages - $6,000 compensation appropriate – $86 compensation for loss of KiwiSaver benefit appropriate - Senior beauty therapist |
| Abstract | Applicant employed by respondent as senior beauty therapist. Applicant claimed unjustifiably dismissed by respondent. Applicant’s employment agreement (“EA”) specified minimum 30 working hours per week. Four months after applicant commenced employment respondent advised could not provide 30 hours guaranteed work to applicant at agreed remuneration as insufficient clients. Respondent advised applicant wished to amend applicant’s guaranteed minimum hours in EA. At meeting applicant proposed 24 hours per week minimum. Applicant received notice from respondent wanted to replace 30 guaranteed hours with guaranteed 15 hours per week. Applicant counter-proposed guaranteed minimum of 20 hours per week and other changes to EA. Applicant dismissed. Applicant claimed position not genuinely redundant especially where applicant dismissed for failing to agree to reduction in work hours. Respondent claimed clear to applicant throughout exchanges applicant’s position could not continue on terms under which applicant engaged. Respondent claimed applicant’s experience should have led applicant to understand reduction of clients led to possibility of ‘no job’.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Genuine rationale to restructure applicant’s position and applicant not replaced as new employee more junior and employed on different terms and conditions. Applicant’s position genuinely redundant in so far as position no longer viable at level of hours and remuneration stipulated in EA. Respondent consulted with applicant regarding respondent’s proposal to reduce applicant’s guaranteed hours but respondent did not discuss with applicant possibility applicant’s position surplus to requirements if parties could not reach agreement. No basis for proposition applicant should have drawn inferences from general discussions about respondent’s downturn in business to lead applicant to conclude proposal to disestablish applicant’s position being considered in absence of agreement between parties. Respondent not able to form view applicant’s position surplus to requirements without engaging in process of genuine consultation and providing applicant opportunity to respond. Respondent’s failure to advise applicant considering making position redundant or provide applicant with information as to how respondent formed view breach of obligation to act in good faith. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $4,312 reimbursement of lost wages. $6,000 compensation appropriate. $86 compensation for loss of KiwiSaver benefit appropriate. |
| Result | Application granted; Reimbursement of lost wages ($4,312.50); Compensation for humiliation etc ($6,000); Compensation for loss of benefit ($86.25)(KiwiSaver contribution); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A)(b);ERA s4(1A)(c);ERA s67A;ERA s67B;ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;GWD Russels (Gore) Ltd v Muir [1993] 2 ERNZ 332;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 14 |
| PDF File Link: | 2013_NZERA_Wellington_32.pdf [pdf 317 KB] |