| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 379 |
| Hearing date | 23-Jun-15 |
| Determination date | 03 December 2015 |
| Member | V Campbell |
| Representation | T Allan ; R Harrison |
| Location | Auckland |
| Parties | Cornish v Amcor Flexibles (New Zealand) Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days - UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed unjustifiably dismissed by respondent – BREACH OF CONTRACT – Applicant sought payment of bonus – RESTRAINT OF TRADE – Applicant sought declaration that non-solicitation clause unenforceable – Accounts manager |
| Abstract | AUTHORITY FOUND –RAISING PERSONAL GRIEVANCE: Grievance sufficiently raised in statement of problem. Grievance raised within 90 days.UNJUSTIFIED DISMISSAL: Redundancy partly motivated by respondent’s feeling that applicant’s remuneration package uneconomical but also motivated by temporary nature of role. Redundancy not a sham. Applicant chose not to engage in process. Respondent conducted fair process in reaching decision to dismiss. Dismissal justified.BREACH OF CONTRACT: Parties never entered into agreement about performance criteria and bonus never paid. Bonus discretionary. Respondent not required to pay bonus. Applicant entered into agreement for paid special leave in lieu of payment of bonus. No breach of contract.RESTRAINT OF TRADE: Clause only limited applicant from soliciting respondent’s clients in competition with respondent’s business. Restraint only lasted for six months. Clause enforceable. |
| Result | Application granted (raising personal grievance) ; Applications dismissed (unjustified dismissal)(breach of contract)(restraint of trade) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s103A ; ERA s114(2) ; ERA s174E |
| Cases Cited | Board of Trustees of Te Kura Kaupapa Motuhake O Tawhiuau v Edmonds [2008] ERNZ 139 (EmpC) ; Grace Team Accounting Ltd v Brake [2014] NZCA 541, [2015] 2 NZLR 494 ; na Nagara v McGrath, Chief Executive of the Auckland College of Education EC Auckland AEC56/96, 13 September 1996 ; Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 (EmpC) |
| Number of Pages | 16 |
| PDF File Link: | 2015_NZERA_Auckland_379.pdf [pdf 502 KB] |