| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 33/08 |
| Hearing date | 1 Nov 2007 |
| Determination date | 07 February 2008 |
| Member | V Campbell |
| Representation | R Alchin ; G Malone |
| Location | Hamilton |
| Parties | Duffy v Affco Holdings Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed lack of process in implementation of redundancy decisions – Claimed effect of redundancies meant increase in workload – Also claimed since suffered previous depressive episode caused by workplace stress should be made redundant – Applicant asked to perform tasks of redundant employee (“T”) – Applicant claimed overwhelmed by requirement to learn T’s tasks as well as carry out own – Applicant claimed disadvantaged by unjustifiable actions by respondent when cold store restructured and co-workers positions disestablished – Applicant also claimed respondent refused to acknowledge or address concerns relating to applicant’s deteriorating health caused by increasing stress levels which respondent made aware of – Respondent’s first manager did not accept changes to staff levels in cold store would impact on applicant’s role – Authority found no dispute decisions around adequate support coverage not discussed with applicant – Respondent’s second manager (“L”) accepted never responded to applicant’s questions and conceded never discussed redundancies with applicant – Respondent argued other resources available and applicant to make changes work – Respondent’s third manager claimed no expectation applicant do more than normal but argued work could be more efficient utilising existing staff and by bringing in help – L argued that applicant’s view unreasonable – Authority satisfied process undertaken by respondent in implementing restructuring unfair and not undertaken in good faith – Found no consultation with applicant prior to decisions regarding co-workers – Found evident applicant did not understand why staff numbers being reduced and where missing expertise would be resourced – Applicant also claimed disadvantage through respondent’s failure to provide safe workplace – Applicant claimed bullied into compromising compliance standards as result of restructuring – L advised that applicant take 2 weeks annual leave – Applicant raised grievance after returning from annual leave and given final warning from respondent – Authority found restructuring process carried out unfairly and in breach of good faith obligations – Respondent’s failure to consult with applicant unjustified – Found return of applicant’s depression caused by respondent’s unjustified actions which created significant concerns by applicant on how work to be completed – Found respondent’s actions unjustifiably disadvantaged applicant – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed resignation culmination of matters in unjustified disadvantage claim – Also claimed issuance of two warnings led to loss of trust and confidence in respondent – Applicant claimed warning letters issued without fair and reasonable process being followed – Authority found first warning letter did not constitute warning – However, process adopted in issuing final warning fundamentally flawed – Constructive dismissal – Authority discussed whether applicant should have been made redundant – Authority found employer to decide whether redundancy situation exists and employee had no right to insist on redundancy – Remedies – Authority found reimbursement of one week of lost wages appropriate as applicant unemployed for one week as very stressed – Authority found $10000 compensation appropriate given applicant’s uncontested evidence and 29 year tenure – Found no contributory conduct – Cold Store Manager |
| Result | Application granted (Disadvantage) (Dismissal) ; Reimbursement of lost wages (1 week) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | s103(1)(b);s103A |
| Cases Cited | Wellington Area Health Board v Wellington Hotel IUOW [1992] 2 ERNZ 466;Auckland Shop Employee's Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Gorrie Fuel (SI) Ltd v Gittoes, unreported, 8 November 2007, Couch J, CC21/07;Auckland Power Board v Auckland Local Authorities IUOW [1994] 1 ERNZ 168;NZ Public Service Association v Land Corporation Limited [1991] 1 ERNZ 741 |
| Number of Pages | 17 |
| PDF File Link: | aa 33_08.pdf [pdf 78 KB] |