| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 10 |
| Hearing date | 27 Nov 2013;2 Dec 2013 |
| Determination date | 14 January 2014 |
| Member | E Robinson |
| Representation | C Eggleston ; P Wicks |
| Location | Auckland |
| Parties | Ledger v Delmaine Fine Foods Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – PARENTAL LEAVE – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed respondent breached Parental Leave and Employment Protection Act 1987 (“PLEPA”) by taking insufficient steps to keep position open for period of applicant’s parental leave – Applicant dismissed while on parental leave – Respondent told applicant verbally applicant’s position would be kept open – Rumours of merger of two of respondent’s clients – Whether applicant told would be restructure but applicant’s position would not be affected – Whether applicant told position redundant during conversation or only presented with proposal – Whether applicant agreed position not full time role – PENALTY – Applicant sought penalty for respondent’s breaches of employment agreement and duty of good faith – Whether sham consultation – National key account manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL – PARENTAL LEAVE: No detailed financial records or copies of projected cost savings provided to applicant or Authority to support respondent’s position economic reasons prompted disestablishment of applicant’s position. Need for respondent to improve efficiency in light of difficult economic climate existed prior to employment of applicant. Unclear why applicant’s position untenable. Even if fair and reasonable employer able to make redundancy decision based on rumour, no evidence of detailed analysis of impact of merger of respondent’s clients. Insufficient evidence respondent had genuine reasons for restructure. Applicant clearly understood was presented with fait accompli rather than proposal for restructure. Only justification given to applicant for redundancy “domino effect” of relocation of certain employee but no supporting paperwork or financial information provided. No opportunity for applicant to provide feedback. Dismissal unjustified. Need to improve efficiencies did not occur after applicant commenced parental leave. Disestablishment of applicant’s position after duties reallocated to other employees during parental leave inherent disadvantage PLEPA sought to mitigate. Respondent failed to rebut presumption applicant’s position would be kept open. Respondent breached PLEPA by failing to keep applicant’s position open during period of parental leave. REMEDIES: No contributory conduct. Respondent to pay applicant $19,230 reimbursement of lost wages. $15,000 compensation appropriate.;PENALTY: Disestablishment of applicant’s position, consultation process and deficiency of information provided to applicant addressed under unjustified dismissal remedies. Respondent breached employment agreement by failing to keep applicant’s position open and failing to consider redeployment options as required by PLEPA. $2,000 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($19,230.77) ; Compensation for humiliation etc ($15,000) ; Penalty ($2,000)(payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s124;ERA s128(2);ERA s135(2)(b);ERA s136(2);Parental Leave and Employment Protection Act 1987;Parental Leave and Employment Protection Act 1987 s36;Parental Leave and Employment Protection Act 1987 s36(1)(c)(i);Parental Leave and Employment Protection Act 1987 s41;Parental Leave and Employment Protection Act 1987 s49;Parental Leave and Employment Protection Act 1987 s50;Parental Leave and Employment Protection Act 1987 s51;Parental Leave and Employment Protection Act 1987 s51(b) |
| Cases Cited | Brake v Grace Team Accounting Ltd (2013) 10 NZELC 79-026;G N Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843 ; [1991] 1 NZLR 151;Lewis v Greene [2004] 2 ERNZ 55;Rittson-Thomas (t/as Totara Hills Farm) v Davidson (2013) 10 NZELR 391;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Tan v Morningstar Institute of Education Ltd t/a Morningstar Preschool [2013] NZEmpC 82;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 20 |
| PDF File Link: | 2014_NZERA_Auckland_10.pdf [pdf 315 KB] |