| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 84A/08 |
| Hearing date | 4 Sep 2008 : 16 Apr 2008 (2 days) |
| Determination date | 08 October 2008 |
| Member | J Crichton |
| Representation | B Buckett ; C Patterson |
| Location | Wellington |
| Parties | Allan v Ogilvy Wellington Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant’s employer merged with respondent - Respondent commissioned survey of staff attitudes through outside agency - Was clear statement on survey that individual responses to survey were confidential and respondent would not have access to individual responses - Management meeting held at which results of survey discussed and where managing director (“S”) disclosed intention to provide reasonably detailed information from survey to subsequent whole staff meeting - At whole staff meeting S released information which enabled staff to identify comments made about applicant - Applicant protested about release of information claiming breached confidence and left meeting - Applicant went on period of sick leave supported by medical certificates - Applicant declined to engage with S and raised unjustified disadvantage grievance - Mediation attempts unsuccessful in resolving problem - S left respondent and applicant returned to work week later - Applicant advised that as consequence of corporate restructuring undertaken with demise of entity applicant previously worked for, applicant no longer employed by that entity and might be redundant - Applicant raised personal grievance for unjustified dismissal - Authority found context in which applicant had to deal with issue about confidentiality was unhealthy because of uncertain relationship with S - Found respondent breached obligations as employer - Found survey content clearly imbued with confidentiality - Found respondent should have at least obtained consent from staff members before showing comments to all staff - Authority satisfied respondent’s unjustified actions caused applicant disadvantage - Respondent accepted liable to applicant for compensation for procedural unfairness but maintained redundancy genuine - Authority found redundancy not genuine but rather convenient device for disposing of troublesome employee - Found no evidence of genuine restructuring - Dismissal unjustified - Remedies - No contributory conduct - Authority found appropriate case to award more than three months lost remuneration - Found respondent failed to pay redundancy compensation when due and owing and did not release applicant’s portfolio for nine months which hindered applicant’s ability to progress further employment - Reimbursement of lost wages of $48,000 awarded - Applicant provided graphic evidence of effect of grievances - Award of $8,500 compensation for unjustified disadvantage grievance appropriate - Award of $10,000 compensation appropriate for unjustified dismissal grievance appropriate - Creative Director |
| Result | Applications granted ; Reimbursement of lost wages ($48,000) ; Compensation for humiliation etc ($8,500)(Unjustified disadvantage) ; Compensation for humiliation etc ($10,000)(Unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(10(c);ERA s103A |
| Cases Cited | R v Secretary of State for the Home Department ex parte Daly [2001] 3 All ER 443;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825 |
| Number of Pages | 13 |
| PDF File Link: | wa 84a_08.pdf [pdf 45 KB] |