| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 139 |
| Hearing date | 26 - 27 Feb 2013 |
| Determination date | 09 July 2013 |
| Member | P R Stapp |
| Representation | J Goldstein, L Ryder ; Pyne Gould |
| Location | Christchurch |
| Parties | West v Pyne Gould Corporation Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s failure to consult and unjustifiably dismissed by respondent - Applicant informed in letter respondent decided to pay bonus subject to applicant remaining in role until 30 June 2012 –Respondent taken over - Respondent decided payment of bonus inappropriate – Applicant made provision in accounts for payment of bonuses – Applicant advised by chief executive to pay bonuses - Applicant made payments – Insufficient funds to meet payment request from board member – Applicant took leave – Applicant’s system access revoked – Financial reporting responsibilities given to outside provider – Applicant’s perpetual responsibilities given to staff members in Auckland – Respondent refused to discuss applicant’s future until bonus repaid – Applicant repaid bonus – Respondent made settlement offer – Applicant accepted settlement – Settlement agreement not provided - Applicant directed to hand back company keys and swipe card – Whether applicant resigned - Breach of good faith – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Applicant claimed respondent failed to pay bonus payment, contractual notice, redundancy compensation and annual leave - Whether bonus payable upon change of control – Whether respondent intended to pay bonus as shares - Employment agreement provided for redundancy compensation if change of control - PENALTY – Applicant sought penalty for respondent’s breach of good faith – Perpetual operations and financial controller |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Changes to applicant’s role permanent. Changes unilateral variation of applicant’s terms and conditions of employment. Applicant’s role disestablished. No consultation or discussion with applicant about changes. No resignation. Applicant dismissed. Negotiation of early exit prohibited by lock out. Respondent failed to undertake investigation before unilaterally removing applicant’s duties. Insufficient investigation of applicant’s explanations. Allegations and concerns not put to applicant. Fair and reasonable employer would not dismiss. Breach of good faith. Applicant unjustifiably disadvantaged by lack of consultation. Dismissal unjustified. REMEDIES: Respondent to pay applicant $120,833 reimbursement of lost wages. $10,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent agreed to pay applicant holiday pay. Applicant reasonably believed entitled to bonus payment. Authority had doubts about authority surrounding bonus payment. Bonus discretionary. Applicant not entitled to bonus. Applicant not paid notice. Applicant lost opportunity in regard to change of control and redundancy. Notice period and redundancy compensation offset by reimbursement of lost wages. Respondent to pay applicant $21,268 arrears of holiday pay.;PENALTY: Inequitable to order penalty when other remedies can fix employment relationship problem. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(arrears of wages)(arrears of holiday pay) ; Reimbursement of lost wages ($120,833.32) ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay ($21,268.11) ; Interest (5%) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A – ERA s103A(3) – ERA s103A(3)(a) – ERA s103A(3)(b) – ERA s103A(3)(c) – ERA s103A(3)(d) - ERA s103A(4) – ERA s103A(5);Judicature (prescribed Rate of Interest) Order 2011 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466 |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Christchurch_139.pdf [pdf 262 KB] |