| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 136/09 |
| Hearing date | 20 Nov 2008 |
| Determination date | 30 April 2009 |
| Member | V Campbell |
| Representation | T Corporaal (in person ; J Foden |
| Location | Whakatane |
| Parties | Corporaal v Catley and Anor |
| Other Parties | Catley |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed false allegations of poor performance and withholding of pig and beast caused disadvantage – Respondent claimed followed proper procedures – Respondent asked applicant whether intended to resign from employment - Authority preferred respondent’s evidence applicant intended to stay in employment - Respondent advised applicant’s performance poor and would dismiss applicant for misconduct – Respondent wrote letter outlining incidents which amounted to misconduct – Applicant responded by agreeing incidents occurred but denied misconduct and poor performance – Respondent wrote another letter offering opportunity to explain misconduct and advised dismissal may result – Authority found no disadvantage – Found no disciplinary action taken – Found list of incidents used to identify weekly tasks to be done – Found parties discussed tasks constructively – Applicant claimed entitled to pig and beast pursuant to agreement – Found undisputed applicant entitled to pig – Found no agreement to provide beast – Applicant claimed unlawful deduction caused disadvantage – Found deduction made after termination therefore not part of disadvantage claim – No disadvantage - UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed redundancy sham – Respondent claimed redundancy due to business restructure – Respondent advised applicant of financial difficulties – Applicant advised business structure would change if cow herd sold and position redundant – Respondent later advised decision to sell herd “imminent” one month before dismissal - Respondent invited applicant to meeting to discuss redundancy – Applicant obtained new employment but did not notify respondent – Applicant declined meeting and requested confirmation of decision to sell herd, redundancy and requested respondent attend mediation – Respondent declined mediation and dismissed applicant – Respondent later employed another farm worker – Authority found need for restructure genuine however procedure used to implement redundancy sham – Found decision to restructure based on cancellation of share milking agreements – Found respondent knew agreements would be cancelled 6 weeks before consultation process began – Found decision to sell herd predetermined therefore no opportunity for input – Respondent admitted process was to “cover their arse” and subsequent hiring of new worker supported applicant’s claim – Found failed to provide specified termination notice in employment agreement – Dismissal unjustified – REMEDIES – No contributory conduct – Found $3,000 compensation appropriate for unfair redundancy process - PENALTY – Applicant sought penalty for breach of good faith – Authority declined penalty because applicant failed to act in good faith by notifying respondent of alternative employment – Penalty declined - ARREARS OF WAGES – Applicant sought arrears of wages deducted from final pay – Respondent claimed applicant in possession of work items – Authority found deduction unlawful in absence of written consent – Respondent to reimburse applicant $717 – Farm Worker |
| Result | Application granted (Unjustified dismissal) ; Application dismissed (Disadvantage) (Penalty) ; Compensation for humiliation ($3,000) ; Arrears of wages ($717.61) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s124 |
| Cases Cited | Bilkey v Imagepac Partners, unreported, Colgan J, 7 Oct 2000, AC65/02;Communications & Energy Workers Union Inc v Telecom NZ Ltd [1993] 2 ERNZ 429;GN Hale & Sons Ltd v Wellington Caretakers IUOW [1991] 1 NZLR 151;Mason v Health Waikato [1998] 1 ERNZ 84;NZ Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40;Simpson Farms v Aberhart [2006] ERNZ 825;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659;Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671 |
| Number of Pages | 15 |
| PDF File Link: | aa 136_09.pdf [pdf 57 KB] |