| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 135/07 |
| Hearing date | 18 Sep 2007 |
| Determination date | 08 October 2007 |
| Member | D Asher |
| Representation | J McDowell ; G Mansfield |
| Location | Napier |
| Parties | Redward v Adams Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant alleged enough suitable work to keep him employed – Respondent claimed originally intended applicant to work as driver but later discovered he was “paint and panel” man called to drive as last resort – Submitted did not have sufficient paint and panel work to justify employment, also claimed insufficient driving work – No consultation before dismissal – Respondent alleged also had performance concerns but never put to applicant – Submitted did not think applicant retrainable due to age – Conceded procedural deficiencies in redundancy process – Alleged acted genuinely and asked Authority to have regard to size and absence of HR division – Dismissal substantively unjustified as respondent’s claim had insufficient paint and panel work in clear conflict with employment agreement that stated applicant employed as driver – No objective evidence applicant surplus to requirements – Claims regarding applicant’s performance advanced after termination not credible, although relied on negative views when decided to dismiss – Breach of obligation to raise concerns with employee – Obligation all the greater in present situation given respondent’s admitted view it saw applicant as health and safety risk, including while driving – Respondent discriminated against applicant on basis of age - Profound breaches of statutory obligations – Redundancy not genuine – Dismissal unjustified - Remedies – Although already found alternative employment, applicant sought reinstatement – Not practicable as respondent’s attitude left Authority with no confidence similar employment relationship problems would not reoccur – Applicant better placed to continue with new employment – Circumstances of termination posed greater problems in respect of efforts to find new employment – Given complete failure to consult and highly critical claims advanced by the Company after the termination in an unmeritorious attempt to justify termination, $15,000 compensation appropriate - Truck driver |
| Result | Application granted ; Reimbursement of lost wages ($12,191.10 less earnings) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s105(1)(i) |
| Cases Cited | Simpsons Farms Limited v Aberhart [2006] 1 ERNZ 825;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 8 |
| PDF File Link: | wa 135_07.pdf [pdf 29 KB] |