| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 234 |
| Hearing date | 12-13 Mar 2014 |
| Determination date | 13 June 2014 |
| Member | K J Anderson |
| Representation | M Beech, F Meikleham ; R Harrison |
| Location | Rotorua |
| Parties | Asby v Waiariki Institute of Technology |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed unjustifiably disadvantaged by restructuring process and respondent's failure to reintegrate applicant into workplace in accordance with return to work policy - Applicant claimed unjustifiably dismissed by respondent - Consultation on restructure during recovery from surgery. Applicant medically incapable of participating in process substantively - Side effects - Unsuccessful applications for new positions - Whether respondent failed to consider impact of surgery on applicant's performance at interview - Covert recording of interview - Projects manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Unfortunate that restructure coincided with medical crisis for applicant but not reasonable to expect respondent to suspend consultation process solely to accommodate applicant's circumstances. Respondent's evidence that applicant's submission would not have impacted on outcome of review and applicant's points made in other employees' submissions. Applicant not unjustifiably disadvantaged by way consultation process carried out. Return to work procedure applied to applicant and required written return to work plan following input from both parties. Applicant returned to work after major operation resulting in substantial and ongoing side effects and more or less left to own devices. Respondent displayed significant indifference towards applicant. Applicant unjustifiably disadvantaged by respondent's failure to implement return to work procedure properly. Applicant unjustifiably disadvantaged by notification late in evening that unsuccessful in application for one position and required to attend interview for other positions at beginning of next day. Disestablishment of applicant's position following review action of fair and reasonable employer. Respondent took reasonable steps to consult with applicant. While respondent's actions meant applicant probably not as well prepared for interview as would otherwise have been, applicant's presentation and performance not so impaired as to be reason applicant failed to obtain one of new positions. Dismissal justified. REMEDIES: No contributory conduct. $20,000 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($20,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A(2) |
| Cases Cited | Blowes v NCR (NZ) Corp Ltd (formerly NCR New Zealand Ltd) unreported, Colgan J, 22 July 2004, AC40/04;Brake v Grace Team Accounting Ltd (2013) 10 NZELC 79-026;Gilbert v Attorney-General in respect of the Chief Executive of the Department of Corrections [2000] 1 ERNZ 332;NCR (NZ) Corp Ltd v Blowes [2005] ERNZ 932;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Staykov v Cap Gemini Ernst & Young New Zealand Ltd unreported, Travis J, 20 April 2005, AC18/05 |
| Number of Pages | 26 |
| PDF File Link: | 2014_NZERA_Auckland_234.pdf [pdf 324 KB] |