| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 37/08 |
| Hearing date | 7 Sep 2007 |
| Determination date | 11 February 2008 |
| Member | L Robinson |
| Representation | C Bennett ; R Tierney |
| Location | Auckland |
| Parties | Savic v Levante Technologies Ltd t/a Tio Pablo and Anor |
| Other Parties | Keats |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed dismissal unjustified and sought order enforcing claimed personal guarantee of salary by respondent’s directors (“K”) and (“A”) – Respondent argued dismissal for redundancy justifiable and personal guarantee not enforceable – (“K”) and (“A”) argued worried continuing losses incurred by respondent had to be personally financed – K concerned with applicant’s performance and sent “multiple” emails to applicant stating sales a concern and current salary not sustainable on figures – K and A met to discuss respondents continuing poor performance – Applicant invited to meeting to discuss respondent’s financial position and applicant’s possible redundancy – Applicant unable attend meeting due to workplace injury – Meeting held at applicant’s house –; K presented applicant with proposal effectively making applicant’s position redundant – Applicant claimed asked opinion by K but interrupted when tried to comment – Also claimed told by A and K that decision already made – K denied applicant’s evidence and argued document only a proposal and applicant’s input sought – Authority preferred K’s evidence and found applicant’s input sought but applicant offered no comment – Applicant subsequently made redundant – Applicant claimed unexpired portion of annual salary under claimed personal guarantee – Authority found applicant relied on statements made by A and K in offer of employment – However, Authority accepted respondent’s argument that alleged contractual guarantee not enforceable under s2 Contracts Enforcement Act 1956 – Authority found guarantee needed to signed by guarantor to be enforceable at law – Claim for salary dismissed – Authority noted historic nature of legislation meant not amended to recognise modern electronic communications or electronic signatures – Authority satisfied decision to dismiss genuinely result of applicant’s poor financial performance – Authority accepted some consultation but ineffective bearing in mind ultimate purpose – Authority found haste with which home meeting thrust upon applicant evidence consultation hurried and contrived – Authority found fair and reasonable employer would have provided applicant same financial information considered at directors meeting – Authority also found unfair to hold applicant accountable for matters not agreed as duties of employment relationship – Authority found respondent did not act in good faith when permitted applicant to rely on assurance of salary only to terminate employment without discussing parameters of assurance – Dismissal unjustified – REMEDIES – Authority declined to award balance of one years salary as guarantee not enforceable – No contributory conduct – Applicant claimed quick redundancy without consultation great shock to family – Further claimed found it very difficult to find new job close to Christmas and family struggled with finances – Authority found revocation of assurance without warning an aggravating factor of the dismissal – Authority found $8000 compensation appropriate given circumstances – Operations manager |
| Result | Application dismissed (Arrears of wages)(Claim for salary) ; Application granted (Dismissal) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Contracts Enforcement Act 1956 s2;ERA s4(1A)(c);ERA s103A;ERA s124 |
| Number of Pages | 12 |
| PDF File Link: | aa 37_08.pdf [pdf 47 KB] |