| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 3A/07 |
| Hearing date | 12 Jul 2007 |
| Determination date | 05 October 2007 |
| Member | H Doyle |
| Representation | W Chew, R Chew ; S Rowe |
| Location | Christchurch |
| Parties | Chew v Aslan Consulting Group Ltd and Ors |
| Other Parties | Trinity Systems Ltd, Howard |
| Summary | GOOD FAITH - Applicant employed by first respondent (“A”) - A sold business to second respondent (“T”) - T offered applicant employment - Applicant commenced employment with T but did not accept terms and conditions of employment - Applicant alleged A breached s4 and s60 Employment Relations Act 2000 (“ERA”) in salary negotiations prior to sale of business to T - Authority found no satisfactory evidence to conclude A acted in bad faith during salary negotiations - Applicant alleged A breached provisions of s69M ERA - A required to have employee protection provision in every individual employment agreement (“IEA”) entered into after 1 December 2004 - Authority found provision satisfied requirements of ERA - In final submissions applicant also alleged breaches of s69N ERA and s69O ERA - Authority found no breach of ERA - Application dismissed - BREACH OF CONTRACT - Clause in applicant’s contract required consultation about proposed sale of business - Applicant told about sale, and meetings held - Authority found A adequately consulted with applicant, except on whether redundancy compensation payable if applicant did not transfer to T - Authority found applicant’s position with A redundant - Found no entitlement to redundancy compensation in IEA except for four weeks’ notice in writing or payment in lieu of notice - Authority ordered A to pay applicant four weeks pay in lieu of notice - Applicant also claimed A breached good faith obligations at time of sale of business to T - Authority found applicant supplied with sufficient information and given opportunity to comment on employment - Found A did not breach duty of good faith - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged by pay reduction taken when transferred to T, and non-disclosure of information - Authority found failure by A to secure transfer of identical terms and conditions of employment when transferred to T not an unjustified disadvantage - Non-disclosure of information did not amount to unjustified disadvantage - UNFAIR BARGAINING - Applicant alleged T breached s4 and s60 ERA in salary negotiations prior to purchase of business from A - Applicant claimed T bargained unfairly in terms of s68 ERA - Applicant given copy of proposed IEA and advised to seek independent advice - Authority found T responsive and communicative with applicant’s representatives throughout negotiations - Found no breaches of good faith - Found T did not bargain unfairly - DISCRIMINATION - Applicant alleged T breached s104 ERA by paying him less than another employee (“M”) - Authority satisfied grievance raised within 90 days of applicant becoming aware of it - Authority found M and applicant did not have same or substantially similar qualifications, experience or skills - No evidence of causal link between applicant’s salary and race - No discrimination - Conflict of interest - Applicant alleged third respondent (“H”) acted in conflict of interest - Authority found no jurisdiction to determine claim - PENALTY - Applicant sought penalty against H for aiding and abetting A’s breach of IEA and racial discrimination - A’s breach of IEA did not warrant penalty - No justification for award of penalty against H - No evidence H discriminated against applicant - Application dismissed - IT Technician |
| Result | Application granted (Breach of contract) ; Wages in lieu of notice (4 weeks) ; Applications dismissed (All other claims against first respondent) ; Applications dismissed (All claims against second respondent) ; Applications dismissed (Claims against third respondent) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(a);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4(1C);ERA s4(2)(ba);ERA s4(2)(bb);ERA s4(4)(aa);ERA s4(4)(bb);ERA s60;ERA s63A;ERA s68;ERA s68(1)(b)(i);ERA s68(1)(b)(ii);ERA s68(2)(b);ERA s68(2)(c);ERA s68(2)(d);ERA s69K;ERA s69L;ERA s69M;ERA s69N;ERA s69O;ERA s104;ERA s104(1)(a);ERA s104(1)(b);ERA s104(1)(c);ERA s114(1);ERA s114(2);ERA s119(1)(a);ERA s135(5);ERA s161;ERA Part 6 subpart 1;ERA Part 6 subpart 2;ERA Schedule 1A;ERA Second Schedule cl10;Employment Relations Amendment Act 2000;Employment Relations Amendment Act (No 2) 2004 |
| Cases Cited | Ruddlesten v Unisys New Zealand Ltd [2004] 2 ERNZ 163 |
| Number of Pages | 34 |
| PDF File Link: | ca 3a_07.pdf [pdf 102 KB] |