| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 154/08 |
| Hearing date | 23 Oct 2008 |
| Determination date | 13 November 2008 |
| Member | G J Wood |
| Representation | S Meikle ; S Dyhrberg |
| Location | Wellington |
| Parties | Roberts v Chief Executive for the Ministry of Health |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed made redundant so entitled to redundancy compensation – Applicant claimed re-employed two weeks later on unlawful fixed term arrangement, so employment should be deemed continuous – Respondent argued applicant’s position made redundant but applicant continued as employee while negotiating redeployment – Respondent argued never agreed on new role because applicant insisted on being paid redundancy compensation and failed to agree to new terms – Respondent argued justifiably dismissed applicant for redundancy, then paid redundancy compensation - Authority found applicant still paid while parties negotiated following disestablishment of position – Found respondent clear applicant must choose to accept ongoing employment or receive redundancy compensation, not both – Found applicant not paid final pay when position terminated – Found at that stage parties clearly wanted ongoing relationship – Found parties waived, by agreement, condition that employment to end when position terminated – Found until parties negotiated new employment agreement, remained contractually bound under former terms - Authority found no concluded agreement reached for new employment, as parties never agreed on key issue of redundancy compensation – Found respondent correct to conclude redundancy compensation not payable until employment ended, despite applicant’s claims – Respondent notified applicant of summary dismissal with pay in lieu of notice prior to attending mediation – Authority found given applicant’s key focus of retaining employment, respondent’s actions greatly reduced chance to mediation success – Found respondent failed to utilise statutory dispute resolution mechanisms – Found not actions of fair and reasonable employer – Found following mediation applicant may have realised demands wrong and stayed with respondent – Disadvantage unjustified – REMEDIES – No contributory conduct – No reinstatement or lost remuneration, as former position gone – Applicant entitled to compensation for respondent’s reaction to applicant seeking mediation and consequent lack of dignified exit - Senior/principal adviser, medical specialist |
| Result | Application granted (disadvantage) ; Application dismissed (dismissal) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Electrotech Controls Limited v Rarere [2007] ERNZ 586;Hayden v Wellington Free Ambulance Service unreported, Shaw J, 24 April 2002, WC 12/02;Sadler v Quotable Value NZ Ltd [2004] 1 ERNZ 45;Simpson Farms Ltd v Aberhart [2006] ERNZ 825;Sky Network Television Ltd v Duncan [1998] 1 ERNZ 354;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917 |
| Number of Pages | 14 |
| PDF File Link: | wa 154_08.pdf [pdf 55 KB] |