| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 27/06 |
| Determination date | 17 February 2006 |
| Member | D Asher |
| Representation | T Wilton ; P Kiely |
| Location | Wellington |
| Parties | NZ Amalgamated Engineering, Printing and Manufacturing Union Inc and Ors v Carter Holt Harvey Ltd |
| Other Parties | Blackler, Moyes |
| Summary | UNJUSTIFIED DISADVANTAGE - Second applicants made redundant - Applicants alleged that respondent breached terms of collective employment agreement which gave second applicants re-employment preference - Clause in collective agreement provided that workers whose employment had been terminated due to redundancy were, within 12 months, where practicable and all things being equal, to be given preference for re-employment - Respondent engaged outside agency to conduct recruitment process - Second applicants applied for vacant positions - When respondent became aware of this it forwarded references to agent which stated second applicants were not to be re-employed - After second applicants undertook various tests for agency they were told that they were not successful - Authority did not accept respondent's argument that other candidates were more suitable for available positions and therefore second applicants legitimately fell outside of re-employment preference - All things were not equal for second applicants because respondent had determined in advance of selection process not to re-employ them - Respondent had agreed to recognise serious consequences that loss of permanent employment could have and further agreed to give preference to re-employment of redundant workers - Re-selection process amounted to a sham - Authority did not accept that respondent entitled to rely on own reference checks to block re-employment of redundant staff - Respondent had accepted second applicants and quality of their work for 16 and 33 years - Performance matters should have been dealt with at time - Word preference" was to be applied literally, with dictionary definition of "a greater liking for one alternative over another or others; a thing preferred; favour shown to one person over another or others; (law) a prior right" - Respondent obliged to deliver preference to second applicants after contracting to do so - Breached contractual undertaking and did not act in good faith - Remedies - One applicant no longer sought re-employment - Because of adverse nature of applicant's admission to agency, unlikely Authority would have granted this remedy - Not entitled to recover lost benefits - No reason to deny other applicant's claim for re-employment by way of compliance order - PENALTY - Authority declined to award penalty - Respondent acted deliberately but evidence fell short of establishing behaviour was wilful" |
| Result | Application granted ; Compliance ordered (M) ; Reimbursement of lost wages (M)(from date he should have been re-employed) ; Compensation for humiliation etc (B and M)($8,000)(per applicant) ; Costs reserved |
| Statutes | ERA s3(a)(i);ERA s114(5);ERA s134;ERA s137;Privacy Act 1993 s29(1)(b) |
| Cases Cited | Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533;Fletcher Development and Construction Ltd v NZ Labourers etc IUOW [1991] 1 ERNZ 259;Priest v Fletcher Challenge Steel Ltd [1999] 2 ERNZ 395;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 12 |
| PDF File Link: | wa 27_06.pdf [pdf 59 KB] |