| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 286 |
| Hearing date | 25-Aug-15 |
| Determination date | 18 September 2015 |
| Member | Anna Fitzgibbon |
| Representation | W McPhail ; S-J Davies |
| Location | Hamilton |
| Parties | Lowe v Graeme Wright Transport Ltd |
| Summary | BREACH OF CONTRACT – Applicant claimed respondent breached employment agreement (“EA”) by failing to pay redundancy compensation - UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – COUNTERCLAIM – PENALTY – GOOD FAITH – Respondent sought penalty for applicant’s breach of good faith by using respondent’s vehicle to obtain work for new employer – Digger driver |
| Abstract | AUTHORITY FOUND –;BREACH OF CONTRACT: Applicant’s employment subject to collective EA at time of dismissal. EA did not contain provision for redundancy compensation or restraint of trade clause. Respondent not required to pay redundancy compensation. No breach of contract.;UNJUSTIFIED DISMISSAL: Respondent failed to analyse whole business to determine whether redundancies necessary. Respondent took into account performance issues never raised with applicant when making decision to dismiss applicant. After applicant’s dismissal, other employee took over applicant’s work. Reason for redundancy not genuine. Respondent never consulted with applicant about potential for redundancy. Applicant not given all relevant information or allowed to participate in redundancy process. Dismissal unjustified. REMEDIES: No contributory conduct. $15,000 compensation appropriate.;COUNTERCLAIM – PENALTY – GOOD FAITH: Applicant breached duty of good faith by approaching respondent’s customers in respondent’s vehicle and not telling respondent. $1,000 penalty appropriate. |
| Result | Applications granted (unjustified dismissal)(counterclaim – penalty – good faith) ; Compensation for humiliation etc ($15,000) ; Penalty ($1,000)(payable to respondent) ; Application dismissed (breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4(4)(e);ERA s103A;ERA s124 |
| Cases Cited | Brake v Grace Team Accounting [2013] NZEmpC 81;GN Hale & Son Ltd v Wellington Caretakers IUOW [1991] 1 NZLR 151 (CA);Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC);Rittson-Thomas t/a Totara Hills Farm v Davidson [2013] NZEmpC 39, [2013] ERNZ 55 ;;Simpson Farms Ltd v Aberhart [2006] ERNZ 825 (EmpC) |
| Number of Pages | 17 |
| PDF File Link: | 2015_NZERA_Auckland_286.pdf [pdf 276 KB] |