| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 113/06 |
| Hearing date | 4 Jul 2006 |
| Determination date | 09 August 2006 |
| Member | G J Wood |
| Representation | Gary Taylor ; Graeme Norton |
| Location | Wellington |
| Parties | Lambert v Ericsson Communications Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Claimed unjustifiably dismissed and not given sufficient notice, redundancy compensation and holiday pay - Applicant put on fixed term assignment in Malaysia - While on assignment offered position with respondent's Swedish division only if respondent agreed to extend applicant's assignment, or applicant took position locally in Sweden - Respondent declined to extend assignment - Applicant did not accept local position - Made redundant and paid in lieu of notice - Authority found redundancy information only by email and phone contact sufficient in circumstances - Open to respondent to refuse assignment extension - Treated applicant as fair and reasonable employer would have while effecting redundancy dismissal - Dismissal justified - In absence of specific contractual provision, reasonable notice should have been two months - Also, not open to pay in lieu of notice without contractual provision allowing for it - Neither action therefore justifiable - Whether notice problem one of arrears or personal grievance - Applicant not hurt by respondent's failures other than through lost remuneration for which would be compensated - As no position for applicant to return to, did not suffer any loss of a right to work" - Redundancy inevitable, and payment in lieu did not impact negatively on applicant - ARREARS OF WAGES AND HOLIDAY PAY - Claimed should have been paid redundancy compensation and holiday pay at level of assignment salary - For purpose of redundancy termination was open to respondent, and was fair and reasonable, to set salary upon repatriation at level based on position prior to assignment - However, holiday pay to be calculated on Malaysian assignment salary in accordance with Holidays Act 2003 - Holiday pay due and owing - Interest 6 percent - PENALTY - Claimed misled about assignment policies in breach of good faith - Applicant not misled - No breach - In any event, any breach not sustained or intended to undermine employment agreementength of service five years - Information systems manager" |
| Result | Application dismissed (Unjustified dismissal, penalty) ; Arrears of wages (Notice period, quantum to be determined) ; Arrears of holiday pay (Quantum to be determined) ; Interest (6 percent) ; Costs reserved |
| Statutes | ERA s4;ERA s4A;ERA s4(1A);Holidays Act 2003 s24(2)(b) |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601 (CA);Coutts Cars Ltd v Bagley [2001] ERNZ 660;Unkovich v Air New Zealand [1993] 1 ERNZ 531 |
| Number of Pages | 10 |
| PDF File Link: | wa 113_06.pdf [pdf 37 KB] |