| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 137 |
| Hearing date | 21 Mar 2013 |
| Determination date | 19 April 2013 |
| Member | E Robinson |
| Representation | R Pool ; P Tremewan |
| Location | Auckland |
| Parties | Feng v Kiwi Discovery Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Complaint about applicant by staff member – Applicant denied allegations and refused to apologise – Applicant willing to return to salesperson role but did not accept reduction in salary – Team leader positions disestablished in subsequent restructure – Whether restructure genuine commercial decision – Respondent sought to fill new positions with right people with right attitude – Applicant’s application for new position unsuccessful – Whether applicant had poor attitude and took too much sick leave – Applicant wanted to be considered for salesperson position and told to re-apply – Team leader |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: No evidence new position not same as applicant’s position. Restructure primarily motivated by concerns held about applicant rather than having commercial impetus. No genuine commercial reasons for redundancy. No indication applicant’s use of sick leave would form part of selection process for new position. Respondent selected applicant for redundancy on basis of frustration and dissatisfaction with applicant’s continued refusal to apologise for something applicant felt wrongly accused of. Selection criteria not fair and reasonable. Respondent under duty to consider redeployment of applicant to salesperson position. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Interest payable. $7,000 compensation appropriate. |
| Result | Application granted ; Reimbursement of lost wages (quantum to be determined) ; Interest (5%) ; Compensation for humiliation etc ($7,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s103A;ERA s124;ERA s128(2);ERA Second Schedule cl11;Judicature Act 1908;Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Mediasmart Ltd) (2009) 6 NZELR 530;G N Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843 ; [1991] 1 NZLR 151;Radius Residential Care Ltd v McLeay [2010] ERNZ 371;Wang v Hamilton Multicultural Services Trust [2010] ERNZ 468 |
| Number of Pages | 15 |
| PDF File Link: | 2013_NZERA_Auckland_137.pdf [pdf 231 KB] |