| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 53/07 |
| Hearing date | 18 Sep 2006 - 11 Oct 2006 (2 days) |
| Determination date | 01 March 2007 |
| Member | R Arthur |
| Representation | J Turner ; C Patterson |
| Location | Auckland |
| Parties | McCarthy v Centurion GSM Ltd t/a Digital Mobile & Anor |
| Other Parties | Millenium Group Holdings Ltd |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Redundancy - Respondents submitted applicants employment ended through expiry of fixed term and not by redundancy - Alternatively argued genuine redundancy - Authority found first respondent employed and dismissed applicant - No written employment agreement - Applicant claimed oral terms of employment included rights to shares and directorship - Claimed offered and accepted employment on the basis of shares and directorship, but were removed without his agreement - Totality of evidence did not support applicants claim - Applicant more likely than not, took job because of opportunity to be an investor or partner - Applicant negotiated shareholdings in companies and attempted to obtain loan to pay for shares - Respondent refused to provide financial information, blocking loan and share transfer - Respondent expected applicant to put cash into business - Applicant asked to resign from directorships - Absence of written confirmation regarding arrangement of shareholding supported view that arrangement with applicant was as investor not as employee - Respondent not bound to assist applicant raise loan - Applicant entitled to four weeks annual leave - No reliable evidence of existence of fixed term agreement - No term requiring payment of redundancy compensation - Lack of written agreement meant applicant did not have specific redundancy terms - However, terms in draft EA provided four weeks salary as compensation - Commercial rationale for restructuring weak - Existence or need for position not issue - Issue salary that would be paid for position - No real evidence redundancy was because position no longer required - Respondent failed to provide significant paper trail" indicating genuine commercial reasons for redundancy - Respondent also claimed incorrectly tendered redundancy compensation and seeks return of payment - Counterclaim unsuccessful - Redundancy unjustified - REMEDIES - Six months salary less ex gratia payment awarded - Regional operations manager" |
| Result | Application granted ; Reimbursement of lost wages ($20,232.77)(6 months) ; Loss of benefit ($7,500) ; Arrears of holiday pay ($4,410) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Aoraki v McGavin [1998] 1 ERNZ 601;Auckland Regional Council v Sanson [1999] 2 ERNZ 597;Dowling v Eade and Haig unreported, Wallace J, August 1989, CP 806/88;G N Hale and Son Ltd v Wellington Caretakers etc IUOW [1991] 1 NZLR 151 ;;(1990) 3 NZELC 97,985, ERNZ Sel Cas 843 ; [1990] 2 NZILR 1079;McCulloch v NZ Fire Service Commission [1998] 3 ERNZ 378;NZ Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739;Paul v Waikato Honey Products Ltd AA unreported, K Anderson, 4 April 2006, AA 109/06;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40;Walker Corporation Ltd v O'Sullivan [1996] 2 ERNZ 513 |
| Number of Pages | 15 |
| PDF File Link: | aa 53_07.pdf [pdf 156 KB] |