| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 155 |
| Hearing date | 2 & 3 March 2017 (2 days) |
| Determination date | 25 May 2017 |
| Member | R Arthur |
| Representation | M Lawlor, C Coup ; M Witt |
| Location | Auckland |
| Parties | Davies v Oneair Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed unjustifiably dismissed by respondent - PENALTY - GOOD FAITH - Applicant sought penalty for respondent’s failure to provide written employment agreement and breach of good faith |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Genuine reason for redundancy. Respondent did not provide applicant with relevant information. Respondent held critical views of applicant. Respondent failed to provide applicant with real opportunity to address information and critical views relevant to decision to make him redundant. Respondent unreasonably refused to consider redeploying applicant. Dismissal unjustified. REMEDIES: Respondent to pay applicant $12,745 reimbursement of lost wages, interest payable. $8,000 compensation appropriate.;PENALTY - GOOD FAITH: Deterrence necessary. Single breach resulting from careless oversight. $1,000 penalty appropriate for failure to provide employment agreement. Respondent misled applicant about basis on which his future with company was being assessed. Respondent withheld information from applicant by not showing critical comments made about him. Deliberate conduct which harmed applicant. Some harm addressed by personal grievance remedies but deterrence necessary. $2,000 penalty appropriate for breach of good faith. |
| Result | Reimbursement of lost wages ($12,745) ; Interest payable (5%) ; Compensation for humiliation etc ($8,000) ; Penalty ($1,000)(crown) ($2,000)(applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A) ; ERA s64 ; ERA s103A ; ERA s103A(5) ; ERA s122 ; ERA s124 ; ERA s136 ; ERA s157 ; ERA s174E ; ERA Second Schedule cl11 ; Judicature (Prescribed Rate of Interest Order) 2011 cl4 |
| Cases Cited | Anderson v Christchurch Press (2005) 7 NZELC 98,774 (ERA);Auckland Regional Council v Sanson [1999] 2 ERNZ 597 (CA);Fagotti v Acme & Co Ltd [2015] NZEmpC 135, (2015) NZELR 1;Grace Team Accounting Ltd v Brake [2014] NZCA 541, [2015] 2 NZLR 494;Jinkinson v Oceana Gold (NZ) Ltd (No 2) [2010] NZEmpC 102, (2011) 9 NZELC 93,655;McCulloch v New Zealand Fire Service Commission [1998] 3 ERNZ 378 (EmpC);PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Rodkiss v Carter Holt Harvey Ltd [2015] NZEmpC 34;Sam's Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, [2011] ERNZ 482;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40 (EmpC);Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 (CA);Waitakere City Council v Ioane (No 2) [2006] 2 NZLR 310 (CA);Wang v Hamilton Multicultural Services Trust [2010] NZEmpC 142, [2010] ERNZ 468;Wallis v Carter Holt Harvey Ltd [1998] 3 ERNZ 984 (EmpC);Wills v Goodman Fielder New Zealand Ltd [2014] NZEmpC 233, (2014) 12 NZELR 651 |
| Number of Pages | 20 |
| PDF File Link: | 2017_NZERA_Auckland_155.pdf [pdf 388 KB] |