| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 11 |
| Hearing date | 17 - 18 Dec 2013 |
| Determination date | 28 January 2014 |
| Member | D Appleton |
| Representation | K Dalziel ; B Molloy |
| Location | Christchurch |
| Parties | Ngatai v Ward Demolition Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably disadvantaged by restructure process and unjustifiably dismissed by respondent – Increase in demolition contractors competing for work in Christchurch and slowdown in work released by Canterbury Earthquake Recovery Agency – Decision to close Christchurch administration office – Applicant worked in rented Portacom – Applicant refused redeployment to Auckland – Unsuccessful attempt to negotiate exit package – Whether respondent failed to supply material relevant to decision – Whether information sought by applicant relevant or highly confidential – PENALTY – Applicant sought penalty for respondent’s breach of duty of good faith – Administration officer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent’s failure to take financial accounts into consideration when deciding to disestablish Christchurch administration function did not mean decision not genuine. Respondent saw solid foundation of evidence for conclusion Christchurch operation required significant reduction. Lack of significant paper trail did not point to failure to carry out proper analysis of future financial security of Christchurch operation. Applicant not employed because of engagement to individual employed by company able to provide work to respondent and respondent not disappointed with applicant when more work not provided through applicant’s fianc�. References to applicant in respondent’s evidence not convincing proof respondent’s owner harboured negative views of applicant prior to dismissal. Dismissal not predetermined. Applicant’s attempts to negotiate exit package did not influence respondent’s decision to dismiss applicant. Genuine commercial reasons for disestablishment of applicant’s position. Most information sought by applicant eventually provided, albeit piecemeal, or did not exist in form requested. Fair and reasonable employer could not refuse to provide comprehensive breakdown of operations requested. Applicant had right to see costs information of administration office staffing throughout country as relevant to continuation of applicant’s employment. Not necessary for applicant to see three years’ of respondent’s accounts and records but fair and reasonable employer could have explored in greater detail information required for applicant to make submissions that respondent willing to provide despite concerns about confidentiality. Respondent entered consultation process in good faith. Respondent did not fail unreasonably to allocate other tasks to applicant or consider alternatives to dismissal. Applicant unjustifiably disadvantaged by respondent’s failure to provide access to information relevant to continuation of applicant’s employment. Dismissal unjustified. REMEDIES: No contributory conduct. $5,000 compensation appropriate.;PENALTY: Respondent’s breach of duty of good faith not deliberate, serious and sustained, and not intended to undermine employment relationship or applicant’s employment agreement. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Compensation for humiliation etc ($5,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s3(a);ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4A;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s124 |
| Cases Cited | Aoraki Corp Ltd v McGavin [1998] 1 ERNZ 601 ; [1998] 3 NZLR 276;Rillstone v Product Sourcing International 2000 Ltd unreported, R Arthur, 7 June 2007, AA167/07;Rittson-Thomas (t/as Totara Hills Farm) v Davidson (2013) 10 NZELR 391;Vice-Chancellor of Massey University v Wrigley [2011] ERNZ 138 |
| Number of Pages | 25 |
| PDF File Link: | 2014_NZERA_Christchurch_11.pdf [pdf 318 KB] |