| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 18/09 |
| Determination date | 26 February 2009 |
| Member | G J Wood |
| Representation | M Quigg ; M Richards |
| Location | Wellington |
| Parties | Porteous v The Chief Executive of the Department of Building and Housing |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Applicant claimed respondent created new role for applicant to avoid paying redundancy entitlements – Applicant claimed agreed to redundancy offer – Removal sought under s178(2)(a) and (b) ERA – First question of law, whether employee entitled to redundancy compensation when offered and declined reassignment when contract did not clearly provide for situation – Second question of law, how long employer in state sector entitled to keep employee doing different duties where position disestablished and reassignment being considered – Applicant argued matter to be removed because in limbo whether can leave employment and obtain redundancy compensation or not entitled to redundancy compensation because failed to take up new position offered – Also submitted given issues of state expenditure, flexibility between employees and employers to avoid redundancies in current economic climate and good faith duties of state sector employees, in public interest for matter to be removed – Respondent consented to removal – Authority accepted circumstances met test in Hanlon particularly as in state sector and given troubled economic times – Found resolution of issue may affect large number of public sector employers and employees as disestablishment of positions often not followed by immediate notice of termination for redundancy – Authority noted may be more costly to attend EC and parties denied benefits from Authority investigation process and determination – However, given important questions of law, agreed facts and as facts not particularly complex, greater benefit to parties and other state sector employees by judgment from EC at first instance – Matter removed to EC |
| Result | Application granted ; No order for costs |
| Main Category | Practice & Procedure |
| Statutes | ERA s178(2)(a);ERA s178(2)(b) |
| Cases Cited | Cocks v Foote Cone & Belding Ltd [1994] 1 ERNZ 180;Hanlon v International Education Foundation (NZ) Ltd Inc [1995] 1 ERNZ 1 |
| Number of Pages | 3 |
| PDF File Link: | wa 18_09.pdf [pdf 17 KB] |