| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 188/09 |
| Hearing date | 13 May 2009 |
| Determination date | 17 June 2009 |
| Member | A Dumbleton |
| Representation | T Sissons ; no appearance |
| Location | Auckland |
| Parties | Speed v Hyro New Zealand Ltd (in Liquidation) and Anor |
| Other Parties | Hyro Services Pty Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – No appearance by respondents – Applicant claimed at all material times employed by first respondent in statement of problem – First respondent took no issue with identity issue in statement of reply and argued applicant’s dismissal justified for performance reasons – First respondent placed into liquidation – Applicant amended statement of problem alleging employer second respondent or respondents jointly – Second respondent registered in New Zealand as overseas company – No statement in reply lodged by respondents – Authority received email from second respondent’s human resources manager (“B”) stating applicant employed by first respondent – Authority found liquidation of first respondent explained non-participation in investigation meeting – No response from second respondent after given opportunity to participate in investigation – Authority found evidence showed both respondents contemporaneously employers of applicant at material times – Authority accepted applicant led to believe both companies same organisation – Found applicant’s supervisors in second respondent’s Sydney office – Found letter of offer of employment written by B – Found same time accepted written offer received employment agreement in name of first respondent – Authority found applicant’s acceptance of offer of employment by second respondent formed employment relationship between second respondent and applicant – Found execution of employment agreement under name of first respondent did not extinguish agreement formed with second respondent – Authority concluded contemporaneously two employment relationships – UNJUSTIFIED DISMISSAL – General manger (“S”) contacted applicant and raised performance concerns – Found concerns not raised during 12 month employment – Applicant told S shocked by allegations and criticised respondent’s management – Applicant also explained to S personal issue of partners pregnancy – Next day S contacted applicant and advised not generating enough revenue due to performance and dismissed applicant – Authority found deed of release respondent required to sign preventing him invoking personal grievance remedy appropriate in other jurisdictions but not New Zealand – Found employers could not have been dissatisfied with applicant as increased base annual salary – Authority found if respondent fair and reasonable employer would have followed most if not all steps in Trotter v Telecom [1993] 2 ERNZ 659 – Authority found from applicant’s evidence dismissal not justified by second respondent – Found unfair and unreasonable to give applicant new budget part way through year before it commenced and then have expected applicant to meet it – Dismissal unjustified – REMEDIES – Found no contributory conduct – Authority found calculation of lost remuneration should justly extend beyond three month period provided by s128(2) ERA – Authority considered appropriate period of loss seven months from date of dismissal while allowing for earnings and payment in lieu of notice – Authority found applicant suffered considerable hurt feelings, humiliation, anxiety and distress as result of abrupt dismissal without regard to fairness and reasonableness in circumstances – Found applicant particularly concerned about damage to reputation in field – Found applicant also concerned about immediate implications for family in circumstances where partner expecting new child and further strain of diagnosis of potentially fatal illness of son – Authority found $17,000 compensation appropriate – Business development manager |
| Result | Application granted ; Reimbursement of lost wages ($31,274.17) ; Compensation for humiliation etc ($17,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s128;ERA s128(2) |
| Cases Cited | Inspector of Awards & Agreements v Pacific Helmets Ltd [1988] NZILR 411;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 10 |
| PDF File Link: | aa 188_09.pdf [pdf 37 KB] |