| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 238/06 |
| Hearing date | 30 Jun 2006 |
| Determination date | 11 July 2006 |
| Member | A Dumbleton |
| Representation | D Orgab ; C Patterson |
| Location | Auckland |
| Parties | Harcombe v Bakers Delight (NZ) Ltd |
| Summary | PARENTAL LEAVE – Applicant alleged respondent breached Parental Leave and Employment Protection Act 1987 (PLEPA") by appointing permanent replacement to her position while she was on parental leave - Applicant not consulted about appointment and unaware of situation until three months before intended return - Applicant lodged PLEPA complaint with Authority and parties ordered to mediation – Respondent’s counsel accepted mediation date, unaware respondent’s manager unavailable – Applicant attended mediation two weeks before intended return to work but no appearance for respondent – Mediator phoned respondent’s counsel who advised employment problem had arisen because of misunderstanding and applicant able to resume original role – Mediator relayed message to applicant – Applicant tentatively accepted offer of reinstatement but asked Authority to continue hearing application for compensation and costs – Respondent claimed as applicant not dismissed remedies not available – PLEPA breached when another person was appointed to position applicant held before going on parental leave - Applicant was in effect dismissed from position – Respondent aware of mistake one month before applicant due to return but failed to take timely steps to advise her and correct error – Respondent’s failure to undertake mediation or similar process to expeditiously resolve complaint breached s64 PLEPA – Respondent’s failure to consult applicant about new appointment breached duty of good faith in s4 Employment Relations Act 2000 – Applicant’s reinstatement did not wipe away breach of PLEPA or harm it caused – Situation exacerbated by failure to act proactively, responsibly and communicatively as required by duty of good faith – Remedies – Compensation awards under s65(c) PLEPA were not to serve function of penalty - Applicant entitled to compensation for harm suffered – Leave reserved to apply to re-open complaint and personal grievance if necessary – Marketing Business Consultant" |
| Result | Application granted ; Compensation ($3000)(s65(c) PLEPA) ; Orders accordingly ; Costs reserved |
| Statutes | ERA s4;Parental Leave and Employment Protection Act 1987 s49(1)(c);Parental Leave and Employment Protection Act 1987 s64;Parental Leave and Employment Protection Act 1987 s65(c) |
| Cases Cited | Ter Harr v Elliot Cotton Associates [1993] 1 ERNZ 371 |
| Number of Pages | 6 |
| PDF File Link: | aa 238_06.pdf [pdf 83 KB] |