| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 225 |
| Hearing date | 23 Apr 2013, 3 May 2013 |
| Determination date | 04 June 2013 |
| Member | E Robinson |
| Representation | C Walker ; S Schofield |
| Location | Auckland |
| Parties | Kyle v Digitech Services Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably disadvantaged by respondent’s failure to provide employment agreement and being made to take annual leave against will – Applicant claimed unjustifiably dismissed by respondent – Applicant started new business – Respondent raised issue of significant time off at meeting with applicant – Meeting overhead by staff – Performance issues raised – Parties discussed slowdown in work – Whether applicant dismissed from full-time role – Whether parties agreed applicant would become casual employee – Applicant indicated was applying for other roles – Respondent sent email to staff regarding change to applicant’s employment status – Respondent informed by staff applicant claimed to have been ‘laid off’ – Whether applicant failed to attend work – Respondent paid applicant accrued annual leave – Whether applicant pressured to take time off – Respondent requested applicant resume full-time employment – Respondent requested applicant report to discuss alternatives to redundancy – Applicant accepted role with new employer – GOOD FAITH – Applicant claimed respondent breached good faith by not being active and constructive in maintaining productive employment relationship – Applicator |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent failed to advise applicant of nature of meeting. Meeting should have been private. Respondent held disciplinary meeting which included suggestion applicant change employment status without fair and reasonable process. Applicant unjustifiably disadvantaged by respondent’s conduct relating to meeting. Applicant not dismissed at meeting. Respondent convinced applicant accepted casual arrangement. Respondent sought to correct any possible misunderstanding. Respondent provided employment agreement. No evidence applicant forced to use annual leave. Respondent clearly stated applicant not dismissed. Respondent’s communication indicated applicant still employed. Parties’ employment relationship ended when applicant accepted new employment. Applicant effectively terminated own employment. No dismissal. REMEDIES: No contributory conduct. $2,000 compensation appropriate.;GOOD FAITH: No breach of good faith. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($2,000) ; Applications dismissed (unjustified dismissal)(good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1)(b);ERA s4(1A)(b);ERA s65;ERA s103(1)(b) |
| Cases Cited | Canterbury District Health Board v National Union of Public Employees [2002] 2 ERNZ 15;Rooney Earthmoving Ltd v McTague [2009] ERNZ 240;UBS Wealth Management (UK) Ltd v Vestra Wealth LLP [2008] IRLR 965;Warwick Henderson Gallery Ltd v Weston (No 2) [2005] ERNZ 921 ; [2006] 2 NZLR 145 |
| Number of Pages | 19 |
| PDF File Link: | 2013_NZERA_Auckland_225.pdf [pdf 250 KB] |