| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 94/09 |
| Hearing date | 7 Oct 2008 |
| Determination date | 03 July 2009 |
| Member | P Montgomery |
| Representation | J Guthrie ; J Wilson |
| Location | Dunedin |
| Parties | Stephens v Clarke Electrical Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed employment under fixed term employment agreement (“EA”) unlawful and redundancy unjustified – Respondent argued applicant knew employment temporary at all material times and redundancy genuine – Respondent employed applicant for applicant’s experience in repairing commercial dishwashers despite not being registered electrician - Respondent continued advertising for registered electricians – EA contained fixed term period and good behaviour clause - Reason for fixed term and how employment would end not included in EA – Respondent argued initially believed sufficient dishwashing repair work to justify employing applicant – Argued decided to close dishwashing repair unit due to poor financial performance – Respondent advised applicant attempts to break into target market unsuccessful and gave applicant verbal notice of termination – Respondent employed one electrician prior to giving applicant termination notice and another electrician following applicant’s departure – Authority found applicant’s employment unlawful as EA did not meet s66 Employment Relations Act 2000 – Found respondent did not make clear whether permanent employment conditional upon applicant’s good behaviour or respondent’s commercial success – Found no concerns about applicant’s performance or behaviour arose during employment period – Found respondent should have employed applicant on probationary basis – Found redundancy genuine given respondent’s failure to break into target market and applicant’s limited electrical qualifications – Found employment of electricians part of respondent’s continued efforts to recruit registered electricians – Found dismissal procedurally unjustified as no redundancy consultation held and no opportunity for input given – Dismissal unjustified – REMEDIES – No contributory conduct – Authority declined award for remuneration of lost wages as highly likely applicant would be dismissed even if consultations held – Found $4,000 compensation for humiliation appropriate – Electrician Service Technician |
| Result | Application granted ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s66(3)(b);ERA s103A |
| Cases Cited | Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 11 |
| PDF File Link: | ca 94_09.pdf [pdf 47 KB] |