| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 517 |
| Hearing date | 21 Oct 2014 - 24 Oct 2014 |
| Determination date | 16 December 2014 |
| Member | R Larmer |
| Representation | R D Kent (in person) ; B Foote |
| Location | Rotorua |
| Parties | Kent v Barkers Park Ltd and Ors |
| Other Parties | P & K NZ Ltd, Park |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by first respondent – Whether applicant resigned – PENALTY – GOOD FAITH – Applicant sought penalty for first respondent’s breach of good faith – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by first respondent’s actions – PENALTY – BREACH OF CONTRACT – Applicant sought penalty for third respondent aiding or abetting first respondent’s breaches of employment agreement (“EA”) – JURISDICTION – Whether Authority had jurisdiction to consider applicant’s arrears of wages claim – Chief executive officer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant did not make own position redundant unilaterally. Identification of options for keeping business operating did not amount to applicant giving notice of resignation. First respondent never communicated view to applicant adequately that applicant’s employment would end after local body elections. Applicant never given contractual notice. Applicant dismissed. First respondent breached duty of good faith by not providing applicant with information relevant to ongoing employment. First respondent did not adopt fair or proper process and failed to comply with contractual notice requirement. Failure to follow fair and proper process meant first respondent not fully and properly informed about relevant matters requiring consideration to justify dismissal substantively. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant reimbursement of lost wages, quantum to be determined. Interest payable. Parties entitled to apply to Authority to fix amount in absence of agreement. $10,000 compensation appropriate.;PENALTY – GOOD FAITH: First respondent breached good faith obligations by failing to provide applicant with information relevant to ongoing employment and opportunity to comment. Other good faith claims considered already as part of unjustified dismissal claim. Requirements for penalty not met. No penalty.;UNJUSTIFIED DISADVANTAGE: Request that applicant provide copies of information about project to individual (“K”) did not disadvantage applicant. Second respondent not in employment relationship with applicant and entitled to employ K to manage certain project. Evidence insufficient to establish that staff told K would take over management of first respondent. First respondent’s approach to employment relationship problem addressed in relation to unjustified dismissal claim. Trespassing of applicant from workplace occurred after employment relationship ended. No unjustified disadvantage.;PENALTY – BREACH OF CONTRACT: Some breach of contract claims considered as part of personal grievance. First respondent did not act duplicitously. No legal obligation on first respondent to consult applicant over appointment of K. Authority had no jurisdiction over events that occurred after end of employment relationship. First respondent breached EA by not acting in fair and reasonable manner and good faith in dealings with applicant. Third respondent sole director and shareholder of first respondent and responsible for breaches of applicant’s EA. Third respondent aided or abetted first respondent’s breaches of EA. Not appropriate case for penalty. No penalty.;JURISDICTION: Parties not in employment relationship when applicant claimed to have undertaken further work. No jurisdiction to consider arrears of wages claim. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages (quantum to be determined) ; Interest (5%) ; Compensation for humiliation etc ($10,000) ; Applications dismissed (penalty – good faith)(unjustified disadvantage)(penalty – breach of contract)(jurisdiction) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4A;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s120;ERA s128(2);ERA s134(2);ERA s160(3);Judicature Act 1908;Resource Management Act 1991 |
| Cases Cited | Kent v Barkers Park Ltd [2014] NZERA Auckland 343 |
| Number of Pages | 27 |
| PDF File Link: | 2014_NZERA_Auckland_517.pdf [pdf 302 KB] |