| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 461 |
| Hearing date | 21 - 22 Aug 2013 |
| Determination date | 09 October 2013 |
| Member | J Crichton |
| Representation | E Hartdegen ; P Kiely, M Piper |
| Location | Auckland |
| Parties | Stevens v Hapag Lloyd (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Whether applicant’s refusal of new position disentitled applicant to redundancy compensation under employment agreement – Whether content of new position fundamentally different from applicant’s current position – Whether respondent should have disestablished different position as well – Whether employment agreement harsh and oppressive – Whether respondent’s behaviour misleading and deceptive – Whether respondent complied with employee protection provision in employment agreement – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith – Imports manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent engaged in genuine restructure to take cost out of business and no evidence of mixed or improper motive. Applicant involved intimately in scoping exercise leading to respondent’s adoption of restructure proposal. Applicant offered new position within 24 hours of being told of disestablishment of current position. Respondent willing to try and retain applicant after applicant raised personal grievance. Difficult to understand why applicant did not tell respondent not interested in sales role during consultation process. Respondent fulfilled obligation to consult. Applicant should have raised issue about disestablishing different position while new structure being determined. Terms and conditions governing new position same as terms and conditions governing applicant’s current position. Difference between positions in “hands on” portion of role very small part of job content. Positions substantially similar. Applicant not entitled to redundancy compensation under employment agreement as refused new position. Not reasonably possible for applicant to maintain did not understand consequences of decision to refuse new position. Employment agreement not harsh and oppressive and respondent not misleading and deceptive. Employee protection provision not applicable. Dismissal justified.;PENALTY – GOOD FAITH: No breach of good faith. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Carter Holt Harvey Ltd v Wallis [1998] 3 ERNZ 984;G N Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843 ; [1991] 1 NZLR 151;Green v Enviro Waste Services Ltd [2012] NZERA Christchurch 117;Group Rentals NZ Ltd v Canterbury Clerical Workers IUOW [1987] NZILR 255;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Wallis v Carter Holt Harvey Ltd unreported, I McAndrew, 16 January 1998, CT5/98;Westpac Banking Corp v Stephen [2000] 1 ERNZ 566 |
| Number of Pages | 18 |
| PDF File Link: | 2013_NZERA_Auckland_461.pdf [pdf 218 KB] |