| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 1/01 |
| Determination date | 15 February 2001 |
| Member | G J Wood |
| Representation | SM Moran & P Cranney ; S Langton |
| Location | Wellington |
| Parties | Noanoa v Victoria University of Wellington |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Position disestablished - New position created - Unsuccessful application for new position - Whether position was new - Not sufficiently dissimilar to existing position - Respondent could require applicant to undertake position without agreement - Faculty administrator |
| Abstract | This was a successful application for reinstatement investigated by the Employment Relations Authority.;The applicant was employed by the respondent as a Faculty Administrator. After a review the respondent disestablished 3 positions, including the applicant's, and created 3 new positions. The applicant objected but made a without prejudice application for one of the positions. The application was unsuccessful.;The grounds of the applicant's objection were that the review was not conducted in good faith, that the position created was not new, and that if the position was new it did not need to be advertised.;HELD: (1) An objective test was to be applied as to whether the new position was sufficiently similar to the position held by the applicant. The test was not whether the applicant was suitable for the position. However, special circumstances relating to the employee needed to be taken into account.;(2) The only differences between the positions were the reporting structure, the degree of autonomy and the inclusion of reception duties. The positions were not sufficiently dissimilar to constitute a new position requiring advertising. The respondent could have unilaterally required the applicant to undertake the position without his agreement.;(3) The Authority should not encroach on the respondent's management prerogative to organise and restructure it's business as it saw fit. There was no breach of good faith by the respondent. It was unlikely that there was an underlying motive to rid the respondent of the applicant. |
| Result | Application granted ; Reinstatement ordered ; Costs reserved |
| Statutes | Education Act 1989 s196;ERA s157;ERA s196;State Sector Act 1998 s77G;State Sector Act 1998 s77H |
| Cases Cited | Auckland Regional Council v Sanson [1999] 2 ERNZ 597;Carter Holt Harvey Ltd v Wallis [1998] 3 ERNZ 984;GN Hale & Sons Ltd v Wellington etc Caretakers etc IUOW [1990] 2 NZILR 1079;Pilgrim v Director-General New Zealand Department of Health [1992] 3 ERNZ 190;Principal of Auckland College of Education v Hagg [1997] ERNZ 116;van Etten v The Board of Trustees of John Paul College unreported, Travis J, 3 April 2000, AC 20/00;Wilkinson v Wairarapa Crown Health Enterprise Ltd [1999] 2 ERNZ 133 |
| Number of Pages | 11 |
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