| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 502 |
| Hearing date | 20 Oct 2014 - 21 Oct 2014 (2 days) |
| Determination date | 05 December 2014 |
| Member | R Larmer |
| Representation | P Swarbrick ; B Foote |
| Location | Rotorua |
| Parties | McLean v Barkers Park Ltd and Anor |
| Summary | PENALTY - BREACH OF CONTRACT - GOOD FAITH - Applicant sought penalty for first respondent's breach of employment agreement (EA") and breach of good faith - Applicant sought penalty for second respondent's aiding and abetting first respondent's breaches of EA - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed unjustifiably disadvantaged by first respondent's actions and unjustifiably dismissed by first respondent - Retail manager and 2IC" |
| Abstract | AUTHORITY FOUND -;PENALTY - BREACH OF CONTRACT - GOOD FAITH: First respondent not required to consult applicant about alleged promotion of other employee (H"). Fact H may have been promoted did not necessarily mean applicant demoted. Announcement that H to become second respondent's main point of contact could have been handled more sensitively but did not breach applicant's EA. First respondent not required to act on applicant's feedback about plans for new retail venture. Failure to investigate staff issue not breach of EA as issue did not involve applicant. Evidence did not support applicant being told of first respondent's desire to get rid of applicant. Manner in which applicant advised of purported redundancy did not breach EA. Unwise for first respondent to raise concerns about alleged breach of confidentiality in letter proposing restructure but no breach of EA. Applicant's EA not breached by being told initially that could not have partner as support person. Applicant not subjected to humiliating treatment. No breach of EA. No points raised by applicant amounted to breach of good faith. No penalty.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Purported promotion of H did not disadvantage applicant. Applicant not demoted and no requirement for first respondent to consult about arrangements for running of business. Evidence did not establish that first respondent had conducted self in manner indicating intention to terminate applicant's employment. Applicant had support of chosen representative at all times. Applicant unjustifiably disadvantaged by first respondent's failure to consult over proposed restructure adequately. Applicant unjustifiably disadvantaged by first respondent's failure to investigate redeployment opportunities. Applicant not actually given final written warning for alleged breach of confidentiality. First respondent breached good faith obligation by not providing applicant with information relevant to restructure proposal or opportunity to comment on information. Basis on which first respondent wished to restructure operations not clear and no evidence to support genuine investigation of ways to reduce costs. Consultation with applicant and consultation with H differed. Unfair for second respondent to reach strong views on whether applicant breached confidentiality without disciplinary process. First respondent considered irrelevant matters and failed to consider relevant matters. No explanation why casual employee engaged to perform applicant's duties immediately after redundancy. First respondent failed to consider redeployment. No full or proper assessment of situation before restructure proposal embarked upon. Decision predetermined. Process rushed. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant $11,038 reimbursement of lost wages (holiday pay included). $7,000 compensation appropriate." |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Reimbursement of lost wages ($11,038.95) ; Compensation for humiliation etc ($7,000) ; Application dismissed (penalty - breach of contract - good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4A;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s128(2) |
| Number of Pages | 24 |
| PDF File Link: | 2014_NZERA_Auckland_502.pdf [pdf 286 KB] |