| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 42 |
| Hearing date | 12 Mar 2013 |
| Determination date | 05 April 2013 |
| Member | G J Wood |
| Representation | N Gupta (in person) ; J Rooney |
| Location | Wellington |
| Parties | Gupta v Infosys Technologies (Australia) Pty Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL - Redundancy – Applicant claimed unjustifiably dismissed by respondent and unjustifiably disadvantaged by respondent’s extension of probationary period, lack of support in client placement, change of manager and unfair performance review process - Authority found applicant’s employment ended by virtue of redundancy due to company merger – Dismissal justified – Found respondent required to negotiate with parent company and seek employment for applicant on same or no less favourable terms – Found respondent did not consult with applicant before decision made to disestablish position as result of merger - Found respondent misled applicant as not transitioned with role and location unchanged - Found respondent used restructuring as device to substantially alter or terminate applicant’s employment - Applicant unjustifiably disadvantaged by respondent's actions - REMEDIES – No contributory conduct – $8,000 compensation appropriate – Senior Project Manager |
| Abstract | Applicant employed by respondent as senior project manager. Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent extending probationary period, lack of support for applicant during client placement, change of applicant’s manager, and biased and unfair performance review process. Respondent fully-owned subsidiary of parent company. Applicant hired from overseas under work visa. Applicant’s line manager changed before applicant commenced employment. Applicant claimed could not occur without applicant’s agreement. Applicant given client account but removed from account as client dissatisfied with applicant’s performance. Respondent asked client to reconsider position but unsuccessful. Applicant’s probationary period extended as result of respondent’s concerns about applicant’s performance, poor fee earnings and interpersonal difficulties. Respondent claimed did not terminate applicant’s employment after probationary period as recognised did not provide applicant early feedback. Applicant objected to extension of probationary period. Respondent sought meeting with applicant. Process never concluded as respondent announced to be integrated with parent company. Respondent informed staff would report to new merged company and roles, location and reporting lines unchanged. Four weeks later respondent advised applicant employees being transferred to merged company, no suitable role available in New Zealand for applicant but role available in India. Applicant claimed role in India not on comparable terms and conditions. Respondent advised applicant no ongoing role available with respondent. Respondent claimed size meant unable to individually consult with all employees regarding employment situation. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant not disadvantaged by change in line manager prior to commencement of work as employment agreement (“EA”) allowed respondent to nominate new reporting arrangement at respondent's discretion. Respondent supported applicant during client placement to reasonable degree and evidence clear placement ended due to client’s dissatisfaction with applicant rather than financial reasons. Respondent’s decision to extend applicant’s probationary period fair and reasonable reflecting applicant’s poor fee earnings and interpersonal difficulties and followed seeking of feedback and formal meeting. Respondent assisted applicant with meeting objectives over extended probationary period. Respondent’s actions not outside those of fair and reasonable employer. Applicant’s employment ended by virtue of redundancy due to company merger. Dismissal justified. Respondent required under applicant’s EA to negotiate with parent company and seek employment for applicant on same or no less favourable terms. Offer of role in India less favourable to applicant. Respondent breached EA by failing to provide applicant encouragement or support and respondent did not consult with applicant before decision made to disestablish position as result of merger. Respondent could not claim too many employees to fulfil individual consultation obligations. Respondent misled applicant as not transitioned to parent company with role and location unchanged. Respondent used restructuring as device to substantially alter or terminate applicant’s employment. Applicant unjustifiably disadvantaged by respondent’s actions. REMEDIES: No contributory conduct. Not practicable or reasonable to reinstate applicant as respondent shell company and applicant did not have Australian work permit. $8,000 compensation appropriate. |
| Result | Application granted; Compensation for humiliation etc ($8,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A);ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s124 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015 |
| Number of Pages | 12 |
| PDF File Link: | 2013_NZERA_Wellington_42.pdf [pdf 205 KB] |