| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 19 |
| Hearing date | 22 - 23 Jan 2014 |
| Determination date | 05 February 2014 |
| Member | D Appleton |
| Representation | K Dalziel ; B Heenan |
| Location | Christchurch |
| Parties | Garrick v PAE (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – United States Antarctic Programme – Applicant’s employment transferred to new employer when service provider changed – Whether applicant told would be no staff changes in next 12 to 18 months – Aspects of applicant’s role transferred to different city over period of time – Whether applicant intimidated and bullied into providing feedback – BREACH OF CONTRACT – Applicant sought damages for respondent’s breach of contract – Medical costs – PENALTY – Applicant sought penalty for respondent’s breach of duty of good faith – Accountant |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non-publication of evidence given by applicant’s counsellor. No breach of process by respondent giving applicant oral heads up of formal meeting. Applicant brought support person to formal meeting despite not being told of right to do so. Not appropriate for meetings to be held without applicant having support person present but no such grievance raised by applicant. Respondent’s manager demanded feedback from applicant in aggressive manner but no such grievance raised by applicant. Different manager’s statement found situation difficult and stressful motivated by recognition of close professional relationship with applicant. Respondent considered applicant’s suggestion to wait until busy season before making decision. No suitable alternative positions available for applicant and other employee not recruited at time respondent knew applicant’s position to be disestablished. No significant disadvantage to applicant having to ask manager for reference three times. Applicant unjustifiably disadvantaged by delay in respondent providing memorandum addressed to applicant personally. Applicant unjustifiably disadvantaged by respondent’s failure to take proper notes of formal meeting and provide copy to applicant. Applicant unjustifiably disadvantaged by respondent breaching applicant’s request for confidentiality by telling other employee of proposal to disestablish applicant’s position. Applicant not dismissed because of any concerns respondent had with applicant on personal or professional level and applicant not targeted personally. No evidence why applicant’s role dismantled task-by-task over period of time without applicant having opportunity to comment on process. No evidence to explain basis on which each element of applicant’s role transferred to different city other than efficiency. Dismantling of applicant’s role over period of two months unjustified and no justified reasons for subsequent decision to disestablish applicant’s position. No information given to applicant about gradual dismantling of role and applicant presented with fait accompli. Consultation fundamentally flawed as applicant’s role had effectively disappeared before consultation process begun. Dismissal unjustified. REMEDIES: No contributory conduct. $172 compensation for loss of professional membership benefit appropriate. $500 compensation for loss of study benefit appropriate. $482 compensation for loss of gym use benefit appropriate. $600 compensation for loss of health insurance benefit appropriate. $1,000 compensation appropriate for unjustified disadvantage and $15,000 compensation appropriate for unjustified dismissal.;BREACH OF CONTRACT: Applicant would not have needed counselling but for way applicant treated by respondent. Respondent to pay applicant $255 damages.;PENALTY: Respondent’s failings not deliberate or intended to undermine employment agreement or employment relationship. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(breach of contract) ; Compensation for loss of benefit ($172.50)(professional membership)($500)(study)($482.50)(gym use)($600)(health insurance) ; Compensation for humiliation etc ($16,000) ; Damages ($255) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A);ERA s4A;ERA s103A;ERA s124 |
| Cases Cited | Rittson-Thomas (t/as Totara Hills Farm) v Davidson (2013) 10 NZELR 391;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 29 |
| PDF File Link: | 2014_NZERA_Christchurch_19.pdf [pdf 308 KB] |