| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 168/06 |
| Hearing date | 23 Aug 2006 |
| Determination date | 05 December 2006 |
| Member | R Arthur |
| Representation | I Thompson ; P Macdonald |
| Location | Christchurch |
| Parties | Currie v McVicar Timber Group Ltd |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - BREACH OF CONTRACT - Redundancy - Applicant claimed redundancy unjustified and unjustifiably disadvantaged - Claimed respondent breached obligation to negotiate terms and conditions of redundancy - Terms and conditions based on collective employment agreement (CEA") - Individual employment agreement ("IEA") included all relevent terms of CEA - No redundancy compensation provision in IEA - CEA provided four weeks notice and negotiation of terms and conditions of redundancy - Applicant claimed offered new postion in Australia - Authority found prospect of new position still inquiry with no definitive elements of offer - Applicant advised position to become redundant - Refused "take it or leave it" cash settlement - Took stress leave - Respondent continued formal consultation process - No real challenge by applicant as to whether respondent genuinely considered restructuring needed - Making applicants position redundant better cost-saver than reducing other positions - Authority found some attention to procedural requirements, however, start of process unfair - Applicant unlikely to have anticipated vulnerability to job and believed future secure, because of job possibility in Australia - Respondent rejected applicants attempts to revive settlement offer, but did little or nothing to discuss how redundancy would be handled - Fair and sensitive employer would have discussed options with applicant - Instead, respondent imposed notice period paid in lieu and termination date one day after dismissal - Disputed clause created contractual right that terms and conditions of redundancy shall be negotiated - Authority could not determine what terms should have been agreed - IEA provided parties to ascertain amount of payment by negotiation - Clause created legally enforceable right to negotiate on range of items or matters - Once settlement offer lapsed, respondent closed its mind to consideration of other terms and conditions of redundancy, which was obliged to at least discuss - Obligation to negotiate breached - Unjustified disadvantage - REMEDIES - Breach denied applicant opportunity to secure more favourable outcome - Real and substantial chance respondent approaching issue with open mind would have agreed to redundancy on terms better than four weeks notice, but below full measure of compensation in settlement offer - Value of lost opportunity would have at least been extended notice period - 12 weeks notice appropriate - Length of service 30 years - Sawmill manager" |
| Result | Application granted (Unjustified disadvantage) ; Loss of benefit (Notice) ; Compensation for humiliation etc ($5000) ; Costs reserved |
| Statutes | ECA 1991 s242 |
| Cases Cited | Canterbury Spinners Ltd v Vaughan [2002] 1 ERNZ 255 (CA);Vaughan v Canterbury Spinners [2003] 2 ERNZ 495 (EC);Vaughan v Canterbury Spinners [2001] ERNZ 399 (EC) |
| Number of Pages | 8 |
| PDF File Link: | ca 168_06.pdf [pdf 93 KB] |