| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 208/05 |
| Hearing date | 27 Apr 2005 |
| Determination date | 08 June 2005 |
| Member | A Dumbleton |
| Representation | C Bennett ; D Blyth |
| Location | Auckland |
| Parties | Roche v Motorpol Australasia Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Applicant advised position redundant due to restructuring - Told at meeting called for another purpose - Several shareholders of company present - No prior consultation - Applicant conceded redundancy genuine - In circumstances respondent had duty to consult applicant prior to redundancy - No extreme situation such as receivership or insolvency enabling respondent to forgo consultation - Dismissal procedurally unjustified - SEXUAL HARASSMENT - Alleged offensive and sexually loaded remarks by shareholder who also supplied goods to respondent - No complaint made to respondent - Harasser not employer or representative of employer but was customer or client" as specified in s117 Employment Relations Act 2000 ("ERA") - Applicant made no complaint to respondent as required by s117 ERA - Therefore respondent not responsible for harasser's conduct - PENALTY - Applicant commenced permanent employment with respondent after period of temporary employment - No opportunity given to seek advice on employment agreement when permanent employment began - Agreement provided on first day of permanent employment but not signed for several months - ERA required provision of copy of agreement "before" entry into agreement - Provision at same time or immediately after entry not sufficient compliance - Applicant "new" employee for purposes of s64 ERA despite previous temporary employment with respondent as subject to new individual employment agreement - Comment that situations where existing agreement varied, extended or renewed may not fall within s64 ERA - No penalty available for failure to provide opportunity to obtain advice as penalty claim brought out of time - REMEDIES - Applicant suffered considerable hurt and distress as result of abrupt announcement of redundancy without prior consultation in presence of several others - Payment of month's notice not worked out by applicant could not be regarded as compensation - Failure to work out notice demonstration of how badly applicant affected by respondent's conduct - COSTS - Length of investigation meeting not specified - Reasonable contribution to applicant's (unspecified) total costs appropriate - Office and administration manager" |
| Result | Application granted (Unjustified dismissal) ; Applications dismissed (Sexual harassment and penalty) ; Compensation for humiliation etc ($7,500) ; Costs in favour of applicant ($1,350) |
| Statutes | ECA;ERA s64(2)(a);ERA s103(2);ERA s117;ERA s123(c)(i);ERA s135(5);ERA Second Schedule cl15 |
| Cases Cited | Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533 |
| Number of Pages | 4 |
| PDF File Link: | aa 208_05.pdf [pdf 26 KB] |