| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 152 |
| Hearing date | 2 Sep 2013 |
| Determination date | 25 November 2013 |
| Member | P R Stapp |
| Representation | G J O'Sullivan ; P B Churchman |
| Location | Wellington |
| Parties | Coffey v Commissioner of Police |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant unjustifiably disadvantaged – Dismissal unjustified |
| Abstract | Applicant (Mr Coffey) employed by respondent (Commissioner of Police) as Business Services Manager (Public Administration and Safety Sector). Applicant claimed unjustifiably disadvantaged by restructure and respondent’s failure to redeploy applicant to suitable position. Applicant claimed unjustifiably dismissed by respondent. Applicant’s position disestablished following restructure. Applicant employed under individual employment agreement (“IEA”). IEA provided that in event of applicant’s position ceasing to exist as result of restructure, applicant would have available options set out in relevant collective employment contract (“CEC”) at time IEA was entered into. Terms of relevant policy provided severance voluntary and to occur by agreement. Respondent claimed terms of later collective employment agreement applied because of expiry of CEC. Applicant claimed dismissal unlawful under Policing Act 2008 as manager (“B”) had no delegated authority to terminate applicant’s employment. Respondent claimed entitled to make general delegation and respondent approved restructuring and communicated with managers regarding affected employees. Applicant unsuccessful in application for other position but not informed of outcome before dismissal and unable to review decision. Applicant unsuccessful in applications for four further roles without interview despite being only applicant. Applicant claimed disadvantaged by respondent’s failure to advertise further vacancy. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant’s IEA imported terms from CEC at time IEA agreed and no variation revoking terms notwithstanding subsequent collective employment agreements. No comment during subsequent variations of applicant’s IEA identifying any change to terms regarding termination in event of restructuring. No consultation with, and participation by, State Services Commission as required under Policing Act 2008 in regard to negotiation of terms and conditions of employment. Respondent required to obtain applicant’s agreement to severance. Only respondent could dismiss applicant. No meeting between applicant and respondent and no written delegation for B to dismiss applicant. B did not have proper delegated authority to dismiss applicant and not sufficient to assume and / or infer such authority. Applicant entitled to have direct input into applications for vacant positions and respondent could have interviewed applicant and explored retraining more thoroughly. Applicant unjustifiably disadvantaged by reassignment process. Dismissal unjustified. REMEDIES: No contributory conduct. While restructure genuine, decision made about applicant’s dismissal invalid having regard to applicant’s terms of employment. Respondent’s resources meant able to find position for applicant. Reinstatement ordered. Applicant required to repay balance of redundancy pay. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for parties to return to Authority if unable to calculate amount. $15,000 compensation appropriate. |
| Result | Applications granted ; Reinstatement ordered ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ECA;ERA;ERA s4;Police Act 1958;Police Regulations 1992;Policing Act 2008;Policing Act 2008 s17;Policing Act 2008 s66(1);Policing Regulations 2008 |
| Number of Pages | 12 |
| PDF File Link: | 2013_NZERA_Wellington_152.pdf [pdf 231 KB] |