| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 5/09 |
| Determination date | 09 January 2009 |
| Member | D King |
| Representation | P Kiely ; R Towner |
| Location | Auckland |
| Parties | Koehler v New Zealand Forst Research Institute t/a Scion |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent failed to pay redundancy compensation – Applicant claimed accepted secondment in Australia on basis would return to same role in New Zealand on conclusion of secondment – Joint venture (“E”) formed between respondent and Australian Commonwealth Scientific and Industrial Research Organisation (“CSIRO”) – E an unincorporated joint venture therefore employees employed by either respondent or CSIRO – Applicant’s Client Services Manager role converted to E’s Operation Manager role – At conclusion of secondment transitional Operations Manager role established permanently in New Zealand – Applicant later appointed to acting E Finance Manager role but continued duties in Operation Manager’s role – Applicant sought relocation for personal reasons to Australia as Operations Manager’s role involved extensive travel between Australia and New Zealand – E’s CEO arranged for relocation of Operations Manager’s role to Australia – E’s CEO notified respondent that applicant to be transferred to CSIRO payroll under terms of CSIRO enterprise agreement – No agreement between respondent and CSIRO that applicant seconded to CSIRO – Applicant’s employment with CSIRO not E – Respondent’s human resources manager (“H”) explained to applicant only way to transfer to Australia would be to take two years leave without pay (“LWOP”) from respondent – LWOP granted, however, H stated no guarantee of ongoing employment at terms end – H reiterated if no ongoing employment with respondent then not entitled to redundancy compensation – Applicant contacted H again and sought confirmation that seconded and lack of redundancy compensation clause be withdrawn – H contacted applicant and reiterated no secondment, on unpaid leave, and not entitled to redundancy compensation – Applicant sought further clarification of employment status from CEO – Applicant received reply which gave inconsistent interpretation of LWOP policy – Decision by E board to terminate joint venture arrangement made applicant’s employment with CSIRO redundant – Applicant sought return from LWOP to work for respondent – Respondent offered applicant alternative position and told not entitled to redundancy compensation if offer rejected – Applicant rejected offer on basis did not have technical competencies for role – Unjustified disadvantage claimed when LWOP and employment with respondent ended – Authority found applicant on LWOP from respondent and not seconded to either E or CSIRO – Found reference to secondment in E and CSIRO’s policies simply for basis on which relocation costs would be paid – Found employment with respondent not terminated because made redundant and at time of redundancy CSIRO employee – Authority found when decided not to accept respondent’s offer at end of LWOP then not entitled to redundancy compensation – Also found no entitlement to redundancy compensation under LWOP policy – Authority accepted respondent’s submission that question of suitable vacancy only arose in relation to question of whether employee could return to work for respondent after LWOP – Respondent argued reason why applicant advised to take LWOP because if joint venture partners decided to recognise service of each others employees then being on LWOP would mean any service related entitlement with respondent would not adversely impact on terms of employment with CSIRO – Authority found interpretation of LWOP by CEO incorrect – Found applicant not entitled to redundancy compensation under LWOP policy because not redundant within definition of EA and policy – Authority agreed with respondent that even if applicant redundant within redundancy definition not entitled to redundancy compensation due to rejection of reasonable alternative offer of employment with respondent – Authority found applicant offered reasonable option of employment which he chose not to accept – No disadvantage – PENALTY – Penalty claims for failure to pay redundancy compensation, failure to respond in timely manner, and breach of mediation confidentiality denied – Costs reserved |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Heenan v Ministry of Agriculture & Fisheries unreported, Palmer J, 8 November 1991, CEC 16/91;New Zealand Printing and Related Trades IUW v Wairarapa Times Age Co Limited [1991] 1 ERNZ 57;Ruapehu District Council v Northern Local Government Officers' Union unreported, Castle J, 16 November 1992, WEC 54/92 |
| Number of Pages | 11 |
| PDF File Link: | aa 5_09.pdf [pdf 44 KB] |