| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 195/06 |
| Hearing date | 2 Jun 2006 |
| Determination date | 06 June 2006 |
| Member | A Dumbleton |
| Representation | J Min ; M Wisker, C Wright, E Ho |
| Location | Auckland |
| Parties | Kim v International College of Linguistics Ltd |
| Summary | PRACTICE AND PROCEDURE – Preliminary matter - Personal grievance - Respondent claimed termination was on grounds of genuine redundancy resulting from a transfer of the company’s undertaking, a language school, in which applicant had been employed – Respondent claimed applicant’s employment had been transferred to new owner of that business New Zealand Early Childhood Education Group Limited (“ECEG”) – Respondent accepted it may have some liability arising from transfer but alleged ECEG was answerable for dismissal – For that reason, respondent sought to join ECEG as second respondent party – Applicant supported application for joinder – Applicant not given any notice of transfer – Respondent accepted it did not obtain consent of applicant to transfer his employment – In transferring the business, vendor and purchaser made the common mistake of thinking that without employees’ consent they too could be transferred along with the school itself – Applicant’s employment agreement should have contained employee protection provision as required by s69M Employment Relations Act 2000 – Employee protection provisions as under ERA were to cover exactly the situation that occurred in present case – Unable to find evidence that ECEG agreed to employ applicant or any other employee as term of sale and purchase – Consistent with that lack of contractual obligation, ECEG told employees on first day back after New Year break that their agreements were not valid with ECEG but offered them a trial for a week – Applicant not offered employment after trial period and was told to leave on 13 January – Up until 13 January applicant was an employee of respondent – No employment agreement with ECEG – Completion of sale and purchase transaction did not, without more, terminate employment agreement – Respondent had to bear responsibility for way applicant finished working for language school on 13 January – By not communicating with applicant, respondent assumed the risk that through the purported “sale” of applicant's employment agreement he would be treated in a dismissive or repudiatory way by the new owners of the business, and would suffer humiliation as a result – Application to join ECEG dismissed |
| Result | Application dismissed |
| Statutes | ERA s6;ERA s69M;ERA s221(a) |
| Cases Cited | Square 1 Service Group v Butler [1994] 1 ERNZ 667;Wellington etc Local Bodies’ Officers’ Industrial Union of Workers v Fielding Borough Council [1983] ACJ 629 |
| Number of Pages | 4 |
| PDF File Link: | aa 195_06.pdf [pdf 64 KB] |