| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 170/05 |
| Hearing date | 24 Mar 2005 |
| Determination date | 10 May 2005 |
| Member | V Campbell |
| Representation | D Felming ; no appearance |
| Location | Auckland |
| Parties | Havili v Seamart (Wholesale) Ltd and Anor |
| Other Parties | Lange |
| Summary | UNJUSTIFIED DISADVANTAGE - No appearance by respondents - Inadequate investigation of applicant's formal complaint of alleged assault by supervisor - Safe working environment required by law - Respondent simply accepted supervisor's word - No evidence respondent's apparent lack of action in addressing complaint was reasonable - UNJUSTIFIED DISMISSAL - Redundancy - Soon after applicant raised personal grievance she was told she and other union member would be made redundant - Told boning crew was to be made casual - No evidence from respondent as to commercial necessity to casualise staff - Not genuine redundancy - Decision to make applicant redundant preceded consultation with two affected employees and union - Consultation process a sham - Dismissal unjustified - Remedies - No lost wages - Appropriate to treat compensation for disadvantage and dismissal globally - BREACH OF CONTRACT - Collective agreement provided that casual employees would not be employed if full-time or part-time employees were willing and able to perform duties except where legitimate health and safety concerns arose - Respondent told by union that intention to casualise breached collective - Applicant made it clear she was willing and able - Since applicant's dismissal casual staff employed - Collective agreement breached - PENALTY - Breach of collective agreement caused applicant to lose her job - Flagrant and deliberate breach - Manager architect of dismissal and instigated breach by choosing to ignore union's warning - Penalties ordered against respondent and manager - COSTS - ï¾½ day investigation meeting - Applicant sought contribution to costs of $1,500 - Appropriate to award costs of $750 - Fish boner/cutter |
| Result | Application granted ; Compensation for humiliation etc ($5,000) ; Penalty ($2,500)($1,000 payable by first respondent to applicant)($1,500 payable to Crown) ; ($500)(payable by second respondent to Crown) ; Costs ($750) |
| Statutes | EAR r16;EAR r17;ERA s134;ERA s134(2);ERA Second Schedule |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601;Airline Stewards and Hostesses of NZ IUOW v Air NZ Ltd [1989] 2 NZILR 883;Canterbury Hotel etc IUOW v Menage Entertainments Ltd [1987] NZILR 336;Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533;IHC Northern Vocational Services v Jordan [2004] 1 ERNZ 421;NZ Nurses Union v Air NZ Ltd [1992] 3 ERNZ 548;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 7 |
| PDF File Link: | aa 170_05.pdf [pdf 38 KB] |