| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2018] NZERA Auckland 51 |
| Hearing date | 14-Sept-17 – 15-Sept-17 (2 days) |
| Determination date | 16 February 2018 |
| Member | N Craig |
| Representation | E Strom ; A Sharp |
| Location | Auckland |
| Parties | Calder v Home Direct Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondents actions – UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalty for respondent’s breach of duty of good faith – COUNTERCLAIM – PENALTY – Respondent sought penalty for applicants breach of duty of good faith – General Manager Retail |
| Abstract | AUTHORITY FOUND – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant unjustifiably disadvantaged by respondent’s decision to start restructuring process at the point it did. Respondent did not provide adequate explanation during initial process to restructure. Genuine redundancy. Contemporaneous employment of other staff did not mean that disestablishment of applicant’s role was not genuine. Issue over who made the final decision to dismiss was a minor defect. Respondent followed fair process leading to dismissal. Dismissal justified. REMEDIES: No contributory conduct. Respondent to pay applicant $19,230 reimbursement of lost wages. $7,000 compensation appropriate. PENALTY: Penalty claim not made in Statement of Problem. Authority not prepared to consider imposition of penalty sought after investigation meeting closed. No penalty. COUNTERCLAIM – PENALTY: Both parties submitted lengthy submissions. Circumstances do not warrant imposition of penalty. No penalty. |
| Result | Application granted (unjustified disadvantage); Reimbursement of lost wages ($19,230) ; Compensation for humiliation etc ($7,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c)(i) ; ERA s4(1A)(c)(ii) ; ERA s103(1)(b) ; ERA s157(1) ; ERA s174C(4) ; ERA s174C(3)(a) |
| Cases Cited | Baguley v Coutts Cars Ltd [2000] 2 ERNZ 409 (EmpC) ; Batistich v Northland District Health Board ERA Auckland AA152/08, 24 April 2008 ; Brake v Grace Team Accounting Ltd [2013] NZEmpC 81 ; Brown v New Zealand Tourism Board [2000] 2 ERNZ 43 (EmpC); Erceg v Erceg [2016] NZSC 135 ; Hall v Dionex Pty Ltd [2015] NZEmpC 29 ; Malaysia Airline System BHD (New Zealand) Ltd v Malone [2003] 1 ERNZ 494 (EmpC) ; Pacifica Shipping (Christchurch) Ltd v Buckingham [1999] 2 ERNZ 261 ; Paper Reclaim Ltd v Aotearoa International Ltd [2001] 3 NZLR 169 ; Rankin v Attorney-General [2001] ERNZ 476 (EmpC) ; Ritson Thomas t/a Totara Hills Farm v Davidson [2013] NZEmpC 39 ; Toll New Zealand Consolidated Ltd v Rail & Maritime Transport Union Inc [2004] 1 ERNZ 392 (EmpC) |
| Number of Pages | 19 |
| PDF File Link: | 2018_NZERA_Auckland_51.pdf [pdf 238 KB] |