| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 413/05 |
| Hearing date | 23 Sep 2005 - 4 Oct 2005 (2 days) |
| Determination date | 13 October 2005 |
| Member | R A Monaghan |
| Representation | T Oldfield ; A Stewart |
| Location | Auckland |
| Parties | Uilou v Campanella Confectionery Ltd |
| Summary | PARENTAL LEAVE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant employed by respondent as operator - Applicant experienced pregnancy-related illness - Work environment aggravated condition - Unable to lift more than 5kg - Applicant given different job but work rate too slow - Factory manager told her she could receive warnings for performance or resign - After union became involved applicant moved to packer position before commencing parental leave - No complaint raised about pre-parental leave issues but Authority made comments to correct respondent's misconceptions - Respondent entitled to temporarily transfer applicant in response to pregnancy-related difficulties - Threats of performance management and disciplinary action not appropriate - Protected position for purposes of parental leave was not packing position but operator position - Focus regarding key position" was not employer's convenience, but level of skill required for position and size of enterprise concerned - Focus also on practicability of finding temporary replacement for position - No grounds for arguing that it was not practicable to employ temporary replacement for applicant - When applicant sought to return to work early from leave she was made redundant and offered two weeks' pay in lieu of notice - Genuine redundancy situation - However respondent not obliged to agree to request to return to work early and could have reconsidered redundancy situation at later date - Moreover requirements of general law of redundancy still had to be observed - No selection process or consultation - Redundancy used to put a formal end to position that was already invisible to respondent - Dismissal unjustified - Parental leave complaint upheld" |
| Result | Application granted ; Reimbursement of lost wages ($3,006.40) ; Compensation for humiliation etc ($7,500) ; Costs reserved |
| Statutes | Parental Leave and Employment Protection Act 1987 s14;Parental Leave and Employment Protection Act 1987 s16;Parental Leave and Employment Protection Act 1987 s36;Parental Leave and Employment Protection Act 1987 s41;Parental Leave and Employment Protection Act 1987 s41(3);Parental Leave and Employment Protection Act 1987 s45;Parental Leave and Employment Protection Act 1987 s49(1);Parental Leave and Employment Protection Act 1987 s50;Parental Leave and Employment Protection Act 1987 s51;Parental Leave and Employment Protection Act 1987 Part IV |
| Cases Cited | Auckland Provincial District Local Authorities Officers IUOW v Onehunga Borough Council [1989] 1 NZILR 476;FINSEC v National Mutual Life Assn of Australasia Ltd [1990] 3 NZILR 29 ; (1990) ERNZ Sel Cas 862;Lewis v Greene [2004] 2 ERNZ 55;New Zealand Bank Officers IUOW v ANZ Banking Group (New Zealand) Ltd [1983] ACJ 803 |
| Number of Pages | 6 |
| PDF File Link: | aa 413_05.pdf [pdf 36 KB] |