| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 17 |
| Determination date | 20 January 2013 |
| Member | E Robinson |
| Representation | F Ashton ; C Parkhill |
| Parties | Castle v Luxottica Retail NZ Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s actions – Whether respondent breached duty of good faith by misleading or deceiving applicant during interview process into believing position permanent – Whether applicant treated differently to other employees by being called “rogue” and being excluded from meetings and conference – Whether applicant not supported by respondent – Whether respondent should have made applicant’s position redundant during restructure and offered applicant alternative position – Applicant employed on fixed term employment agreement (“EA”) with valid 90 day trial period provision – Applicant dismissed during 90 day trial period – Learning and development manager New Zealand |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: EA contained “whole offer” clause and any representation applicant’s position to be permanent superseded by fixed term provision in EA. Duty of good faith not owed to applicant during interview process as applicant not employee. No term and condition of employment affected adversely by alleged different treatment. No contractual commitment in EA for respondent to hold regular appraisal meetings and concerns about applicant’s performance raised with applicant. Applicant’s lack of support claim intrinsically linked to termination of applicant’s employment and applicant precluded from challenging dismissal under 90 day trial period provision. Even if applicant’s role affected by restructuring, respondent entitled to assess applicant’s suitability for position and terminate applicant’s employment under 90 day trial period provision. No unjustified disadvantage. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1)(b);ERA s67A;ERA s67B;ERA s103(1)(b) |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 October 2000, AC65/02;Hayden v Wellington Free Ambulance Service [2002] 1 ERNZ 399;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253;Tranz Rail Ltd v Rail & Maritime Transport Union (Inc) [1999] 1 ERNZ 460;Victoria University of Wellington v Haddon [1996] 1 ERNZ 139 ; [1996] 2 NZLR 409;Wellington Area Health Board v Wellington Hotel IUOW [1992] 2 ERNZ 466 ; [1992] 3 NZLR 658 |
| Number of Pages | 10 |
| PDF File Link: | 2014_NZERA_Auckland_17.pdf [pdf 250 KB] |