| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 407/08 |
| Hearing date | 21 Oct 2008 |
| Determination date | 01 December 2008 |
| Member | M Urlich |
| Representation | G Norton ; G Wagg |
| Location | Auckland |
| Parties | Short v Walton Special Vehicles and Conversions Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Respondent invited applicant to meeting without notice of subject – Respondent advised business in financial difficulties and gave notice position in jeopardy and sought input – Applicant left workplace and sought legal advice – Applicant’s lawyer sent letter to respondent seeking further information, asking for more time to give feedback given proximity to holiday season and requesting confirmation that applicant only staff member affected – Following day, respondent accused applicant of causing trouble, then held staff meeting where applicant not invited – Respondent advised applicant would not be responding to lawyer’s letter and this was the end – Applicant given dismissal letter containing options involving final work date and lump sum redundancy payments – Parties discussed options and respondent advised applicant had taken liberty in using work vehicle to meet with lawyer – Applicant denied doing so and respondent apologised – Applicant advised respondent had selected option from dismissal letter - Authority found respondent in parlous financial situation and genuine business need may have motivated redundancy – However, found any genuine basis for redundancy overshadowed by respondent’s reaction to receiving applicant’s lawyer’s letter – Found requests in letter lawful and reasonable – Found no evidence respondent gave requests fair consideration – Found only evidence was applicant’s claim respondent reacted to applicant’s assertion of rights by dismissing him – Found dismissal for redundancy not motivated by genuine business purposes – Dismissal unjustified – Remedies – Authority found respondent no longer trading so no position applicant could be reinstated to – Reinstatement declined – Applicant claimed reimbursement of lost wages for three month period until went on holiday – Authority found no evidence applicant mitigated loss – Found applicant entitled to two weeks’ lost wages – Found dismissal complete surprise to applicant – Found applicant not invited to Christmas function and unable to say goodbye to workmates – Found dismissal caused financial pressure immediately before Christmas period – Found respondent dismissed applicant’s son on same day – Found $5,000 compensation appropriate - ARREARS OF WAGES – Authority found final wage and time records showed applicant paid all holiday pay - Applicant sought award of wages per options in dismissal letter – Applicant claimed chose second option in letter, so entitled to lump sum payment – Authority accepted applicant made election – Found applicant entitled to lump sum less final pay already received - COSTS – Applicant sought contribution of $2,000 to actual costs of $2,835 – Found costs to follow event – Applicant entitled to $1,500 costs and $123 disbursements |
| Result | Application granted ; Reimbursement of lost wages ($2,400)(2 weeks) ; Compensation for humiliation etc ($5,000) ; Arrears of redundancy payment less final pay ($1,619.24) ; Costs in favour of employee ($1,500) ; Disbursements in favour of employee ($123.90) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1)(a);ERA s4(1A)(b);ERA s4(1A)(d);ERA s4(4)(d);ERA s4(4)(e);ERA s103A |
| Cases Cited | PBO v Da Cruz [2005] 1 ERNZ 808 |
| Number of Pages | 7 |
| PDF File Link: | aa 407_08.pdf [pdf 34 KB] |