| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 167/07 |
| Hearing date | 23 May 2007 |
| Determination date | 07 June 2007 |
| Member | R Arthur |
| Representation | J Hannan ; D France |
| Location | Auckland |
| Parties | Rillstone v Product Sourcing International 2000 Ltd |
| Summary | PRACTICE AND PROCEDURE - Authority concluded respondent waived privilege in legal advice from previous advisor by referring to content of advice in witness statements - Non-publication order made in relation to evidence of respondent's budgets and accounts - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Respondent claimed applicant accepted new position with different job content and lower salary, but chose to end her employment - Applicant told her position to be disestablished but would continue to be employed in sales role with lower salary but greater incentives - Later given notice of redundancy and told could apply for sales role - Applicant's evidence did not accept new role preferred - Whether redundancy genuine - Respondent faced genuine commercial pressures - However, new position not sufficiently different to break continuity of employment - Any requirement for change in direction or emphasis on sales well within express terms of applicant's employment agreement - Redundancy not genuine - Clear respondent considered really dealing with performance issues - Email from advisor suggested redundancy shorter process than performance management and simply having lower salary would make new role different, a view Authority considered inconsistent with established law - Employment agreement provided for redundancy where position superfluous to needs of employer, taken to refer to work to be done, not solely salary paid for it - Emphasis on reducing applicant's salary evident in respondent's evidence - Mixed motives for redundancy - Dealing with performance issues predominant purpose - Dismissal also procedurally unfair - Dismissal unjustified - Actions of respondent in purporting to make position redundant and seek applicant's acceptance of new position at lower salary amounted to failure to act in good faith and unjustified disadvantage - Remedies - Insufficient evidence to establish applicant entitled to bonus payment - Merchandiser |
| Result | Application granted ; Reimbursement of lost wages ($32,307.69)(14 weeks) ; Compensation for lost benefit (Clothing allowance)($1,346.15) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(1A)(c);ERA s4(4);ERA s4(4)(c);ERA s4(4)(d);ERA s4(4)(e);ERA s103A;ERA Second Schedule cl10 |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601;Auckland Regional Council v Sanson [1999] 2 ERNZ 597;Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533;Forest Park (NZ) Ltd v Adams [2000] 2 ERNZ 310;GN Hale & Sons Ltd v Wellington etc Caretakers etc IUOW [1990] 2 NZILR 1079; (1990) ERNZ Sel Cas 843;McCulloch v NZ Fire Service Commission [1998] 3 ERNZ 378;Nelson Aero Club Inc v Palmer unreported, Shaw J, 7 March 2000, WC 10A/00;Rolls v Wellington Gas Co Ltd [1998] 3 ERNZ 116;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825 |
| Number of Pages | 16 |
| PDF File Link: | aa 167_07.pdf [pdf 60 KB] |