| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 229/07 |
| Hearing date | 31 Jul 2007 |
| Determination date | 02 August 2007 |
| Member | V Campbell |
| Representation | T Oldfield ; K Thurston |
| Location | Taupo |
| Parties | Heremaia v Sheddan Investments Ltd t/a Tokaanu Hotel |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Respondent unrepresented at investigation meeting and filed no statement of reply – Authority arranged conference call – Only in extraordinary circumstances would Authority not grant leave to arrange conference call in circumstances – Applicant worked breakfast and dinner shifts – Applicant claimed advised by respondent that no longer offering breakfasts so position redundant – Claimed no warning, consultation, or notice period – Respondent argued applicant initiated conversation by asking what was happening with business – Authority preferred applicant’s evidence that made redundant – Authority found consultation statutory requirement of duty of good faith under s4 Employment Relations Act 2000 – Found no consultation with applicant prior to decision to terminate employment – Found decision of redundancy profoundly unfair – No notice that redundancy a possibility – Usual actions of fair and reasonable employer not present – Given inherent unfairness in determination and implementation of redundancy, Authority found redundancy not genuine – Dismissal unjustified – Remedies - Authority found 2 weeks reasonable notice period in circumstances – Authority ordered 2 weeks pay in lieu of notice – Applicant found alternative employment on lower wage 2 weeks after dismissal – Applicant arranged meeting with respondent to discuss redundancy – Respondent confirmed offer of reinstatement 5 months after dismissal – Open for applicant to refuse offer un circumstances – Respondent offered no apology or assurance of future fair treatment – Authority ordered respondent also pay applicant 3 months difference in lower wage – Authority accepted applicant upset and embarrassed by dismissal – Exacerbated by small community and advertisement published in newspaper day after dismissal with photo – No contributory conduct – Awarded $5,000 compensation - Second chef |
| Result | Application granted ; Reimbursement of lost wages ($840)(2 weeks notice) ; ($2,495.59)(3 months wage difference) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s124 |
| Cases Cited | Communication & Energy Workers Union Inc v Telecom NZ Ltd [1993] 2 ERNZ 429;Simpson Farms v Aberhart [2006] 1 ERNZ 825;Staykov v Cap Gemini Ernst & Young NZ Ltd (unreported, Travis J, 20 April 2005, AC 18/05);Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671 (CA) |
| Number of Pages | 7 |
| PDF File Link: | aa 229_07.pdf [pdf 34 KB] |