| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 219/06 |
| Hearing date | 28 Mar 2006 |
| Determination date | 26 June 2006 |
| Member | D King |
| Representation | J Douglas ; P Kotze |
| Location | Auckland |
| Parties | Apaapa v Whitehouse Entertainment Ltd |
| Summary | PARENTAL LEAVE - UNJUSTIFIED DISMISSAL - Redundancy - Whether redundancy genuine - Whether employer obliged to keep job open - Applicant took parental leave from respondent - Respondent reorganised jobs of employees while applicant on parental leave - Applicant not included - Applicant informed by telephone by human resources advisor, and at later meeting, that duties had been absorbed by other employees while on parental leave - Applicant raised grievance - Applicant sought information related to redundancy - Respondent did not supply information - Found applicant's position was disestablished while on parental leave - Applicant gave required notice of intention to return to work under s39 Parental Leave and Employment Protection Act 1987 (PLEPA") - Had Authority found applicant failed to give notice, respondent could not have relied on this to terminate employment, as may be "irregularity" under s68 - Total failure to consult on reorganisation of position - Respondent breached test for redundancy in PLEPA - Applicant not given opportunity to see position disappear, so resulting redundancy could not be genuine - Whole process conducted in bad faith - Respondent designed false redundancy process to legitimise actions - Redundancy not genuine - Breached PLEPA presumption that job be kept open and took no steps to ensure was kept open - Respondent failed to appreciate and understand PLEPA obligations - Unjustified dismissal - Remedies - Compensation at $15,000 as applicant deeply affected and in vulnerable position as result - COUNTERCLAIM - Claimed applicant used respondent's computer and time to run own business - Respondent's inaction condoned activities - No evidence of loss - Counterclaim dismissed - PENALTY - Failure to supply employment agreement claim raised only in closing submissions - No penalty ordered - Length of service three years five months - Office administrator" |
| Result | Application granted ; Reimbursement for lost wages ($13,322.12) ; Compensation for humiliation etc ($15,000) ; No order for costs |
| Statutes | ERA s4(1A)(c), Parental Leave and Employment Protection Act 1987 s36(1), Parental Leave and Employment Protection Act 1987 s38, Parental Leave and Employment Protection Act 1987 s39, Parental Leave and Employment Protection Act 1987 s40, Parental Leave and Employment Protection Act 1987 s41, Parental Leave and Employment Protection Act 1987 s49(1)(c), Parental Leave and Employment Protection Act 1987 s50, Parental Leave and Employment Protection Act 1987 s51, Parental Leave and Employment Protection Act 1987 s52, Parental Leave and Employment Protection Act 1987 s65, Parental Leave and Employment Protection Act 1987 s68(1) |
| Cases Cited | Denley v Service Workers Union of Aotearoa (Inc) [1994] 1 ERNZ 863;Lewis v Greene [2004] 2 ERNZ 55;Manukau City Council v Auckland Local Authorities Officers' IUOW [1988] NZILR 747;NZPSA v Rural Banking and Finance Corp [1989] 3 NZILR 350 |
| Number of Pages | 9 |
| PDF File Link: | aa 219_06.pdf [pdf 51 KB] |