| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 249/07 |
| Hearing date | 3 Aug 2007 |
| Determination date | 15 August 2007 |
| Member | R Arthur |
| Representation | M Selwyn (in person) ; D Erceg |
| Location | Auckland |
| Parties | Selwyn v I D Erceg Plumbing Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Parties agreed on application of unsigned employment agreement - Agreement stated no entitlement to redundancy pay and required notice of one week - Applicant claimed redundancy not genuine and proper process not followed - Respondent claimed financial difficulties meant cost savings best achieved by reducing staff - Respondent claimed director to increase field time and reduce office time therefore one less registered drainlayer required - Registered drainlayer in ‘public sector’ team was specialist in public works so retained - Applicant registered drainlayer in ‘private sector’ team in which director could work - Applicant not considered for work as labourer because had said preferred only skilled work - Applicant accepted would only have taken labouring job if on same pay as skilled position - Applicant claimed four employees hired after dismissal - Authority found three new positions substantially different and of lesser pay to applicant’s - Respondent entitled to make business more efficient by engaging more labourers - Fourth new position involved senior registered drainlayer with existing contracts for public work and extensive contacts - New drainlayer employed temporarily before established partnership with company - Majority of new drainlayer’s work substantially different to applicant’s role - Authority found decision to increase director’s field time made applicant’s position surplus to requirements, within definition of redundancy in employment agreement - Respondent arrived unannounced at applicant’s house outside work hours and told applicant redundant due to business restructuring - Applicant shocked and made no protest - Respondent accepted no process to redundancy - Authority found fair and reasonable employer would have observed s4 Employment Relations Act 2000 good faith obligation to consult employee, consider proposals and discuss minimising impact of redundancy - Genuine redundancy but effected unfairly - Unjustified dismissal - Remedies - Entitled to compensation for embarrassment caused by sudden termination of employment - Drainlayer |
| Result | Application granted ; Compensation for humiliation etc ($3,000) ; Disbursements in favour of applicant ($70) (filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601;GNH Hale & Sons Ltd v Wellington Caretakers and Cleaners Union [1990] 2 NZILR 1079;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825 |
| Number of Pages | 7 |
| PDF File Link: | aa 249_07.pdf [pdf 28 KB] |