| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 160/09 |
| Hearing date | 18 Mar 2009 - 26 Mar 2009 (2 days) |
| Determination date | 20 May 2009 |
| Member | R A Monaghan |
| Representation | AM McInally ; P Tremewan |
| Location | Auckland |
| Parties | Skelly v Croxley Stationery Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed process used in selection for redundancy unfair - Claimed selected for redundancy because of union activities and so discriminated against on that basis - Respondent developed selection criteria where employees assigned subscores in number of categories giving overall score out of 100 and employees with scores falling within certain range would be considered for redundancy - Applicant received low scores for criteria of flexibility and teamwork/attitude from most of assessors - Applicant selected for redundancy and employment terminated - Authority found although four people independently assessed applicant only area manager’s assessment carried weight - Found more senior the assessor, more adverse the view of applicant’s attitude - Found no opportunity for individuals to comment on assessments before finalised - Authority found respondent entitled to use subjective assessment criteria, but had to do so in a fair way - Found applicant should have been told of assessment and given opportunity to object if wished - Authority did not accept submission applicant dismissed simply because a union delegate - However, found as applicant involved in union activities and alleged discrimination on that ground test met under s119(2) Employment Relations Act 2000 that was rebuttable presumption applicant discriminated against on grounds alleged - Respondent sought to rebut presumption by saying applicant’s position as delegate not reason for selection for redundancy, rather lower scores in selection process based on questioning and confrontational aspects of personality - Claimed selection process fair and applied in same way to all affected staff - Authority found none of respondent’s examples of applicant’s conduct involved applicant taking unreasonable or unfounded position with reference to applicable terms of collective employment agreement or right to argue robustly in support of a colleague facing a disciplinary procedure - Found concerns about applicant’s attitude and flexibility inextricably intertwined with role as union delegate - Authority not persuaded sufficient distinction between concerns about applicant’s attitude in general, and attitude as indicated by conduct of role as union delegate, to warrant a different conclusion that ‘but for’ participation in union activities would not have been selected for redundancy - Dismissal unjustified - REMEDIES - Applicant felt deep sense of unfairness that role as delegate not separated from performance as employee - Claimed had sleepless nights - Authority found evidence of injury not at high end of scale - Compensation of $5,000 appropriate - Envelope Machine Adjuster |
| Result | Application granted ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(c);ERA s104;ERA s104(1);ERA s107;ERA s107(1)(g);ERA s119;ERA s119(1);ERA s119(2) |
| Cases Cited | Apiata v Telecom NZ Limited [1998] 2 ERNZ 130;Dunn v Methanex NZ Limited [1996] 2 ERNZ 222;NZ Workers IUOW v Sarita Farm Partnership [1991] 1 ERNZ 510 |
| Number of Pages | 12 |
| PDF File Link: | aa 160_09.pdf [pdf 40 KB] |