| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 95/08 |
| Hearing date | 2 Oct 2007 : 4 Mar 2008 (3 days) |
| Determination date | 14 July 2008 |
| Member | R Arthur |
| Representation | B Buckett ; D Flaws |
| Location | Wellington |
| Parties | Heap v Calibre Plastics Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed dismissal for redundancy not genuine and not fairly carried out – Applicant employed to sell particular brand of specialised medical equipment – Applicant had sold brand previously and helped respondent obtain agency for brand - Individual employment agreement not formalised, but drafts exchanged – Authority accepted latest version of draft agreement as one parties considered themselves bound by - Respondent decided not to renew agency - Employment agreement stated applicant’s position redundant if agency terminated – Authority satisfied that sales below expectations for sustaining applicant’s position – Found respondent entitled to make business decision – Decision to retain existing sales manager, rather than applicant, for other work was legitimate exercise of respondent’s discretion – Applicant suggested decision to make position redundant was retaliation by managing director (“H”) because applicant rejected sexual advances – Authority not satisfied that instances provided amounted to sexual advances - Authority satisfied genuine commercial reasons for ending agency, with inevitable consequence on applicant’s position due to employment agreement provision – Authority found redundancy foregone conclusion when respondent did not renew agency agreement – Found respondent not consulting applicant about likely effect of that decision before speaking with supplier was clear breach of statutory duty of good faith regarding proposals that might impact on employee – H should also have sought applicant’s approval prior to recommending to supplier that consider employing applicant directly – Found H only consulted applicant about effect of redundancy on applicant, not its fact or any consideration of alternatives – Authority found way respondent ended distribution agency, told applicant about it, and carried out redundancy of position was breach of terms on which had employed applicant and its statutory good faith obligations – Redundancy genuine but grievance arose from manner of redundancy announcement and inadequate consultation – Authority did not put weight on complaint of tension following announcement of redundancy because found neither party’s version sufficiently candid or blame free – REMEDIES – As redundancy genuine, Authority dismissed claims for lost wages and compensation for embarrassment that made redundant, difficulty in finding new job and applicant’s expenses previously covered by respondent – Authority found applicant’s allegation of respondent’s subsequent poor conduct not proven because unable to attribute bad mouthing to respondent - Applicant’s claim for return of personal property allegedly held by respondent declined as evidence did not establish any material in respondent’s possession – Found that although way applicant heard about redundancy was brutal, not realistically shock due to previous discussions about financial state of company – Unchallenged evidence from applicant’s psychologist of depression and anxiety – Applicant entitled to compensation for humiliation, loss of dignity and injury to feelings – Employment agreement entitled applicant to two and a half weeks redundancy compensation owing – Supplementary determination WA 95A/08 corrected arithmetical error in original calculation of redundancy compensation – One day unpaid holiday pay owing to applicant – No contributory conduct as respondent conceded low sales not applicant’s fault – Sales Manager |
| Result | Application granted ; Redundancy compensation (2 ï¾½ weeks) ; Arrears of holiday pay (1 day) ; Compensation for humiliation etc ($6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA 2000 s103A;ERA 2000 s124 |
| Cases Cited | GN Hale & Sons Ltd v Wellington, Taranaki and Nelson Caretakers etc IUOW [1990] 2 NZILR 1079;GN Hale & Sons Ltd v Wellington, Taranaki and Nelson Caretakers etc IUOW (1990) ERNZ Sel Cas 843;PBO v Da Cruz [2005] ERNZ 808;Simpsons Farms Limited v Aberhart [2006] 1 ERNZ 825 |
| Number of Pages | 16 |
| PDF File Link: | wa 95_08.pdf [pdf 58 KB] |