| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 244/09 |
| Hearing date | 26 May 2009 |
| Determination date | 22 July 2009 |
| Member | R A Monaghan |
| Representation | P Faidley ; I Davidson |
| Location | Auckland |
| Parties | Cutting-Gardner v BMC Engineering Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Part time employment – Applicant claimed redundancy not genuine and procedurally unjustified – Also claimed respondent engaged in misleading and deceptive conduct breaching duty of good faith – Respondent’s director (“R”) sought successor as nearing retirement age – R told applicant intended to restructure respondent and full time position necessary – Respondent placed advertisement for administration manager on recruitment website – Applicant met with respondent where told of restructuring plan and impact on current position – Respondent rejected applicant’s suggested alternatives to new full time position and continued recruitment process – Applicant scored lowest of all interviewees for new position – Applicant told position redundant and mutually acceptable separation agreement sought – Authority found restructuring not driven by wish to save costs but to enhance administrative duties through full time position – Found enhanced duties of new full time position not set at level respondent knew applicant could not reach – Found applicant’s duties had materially changed – Found part time position genuinely redundant – Authority rejected argument applicant should have been given opportunity to develop required skills – Found applicant did not have necessary skills for new position and respondent entitled to recruit someone with required skills – Found respondent should not have advertised new position without confirming whether any comment from applicant - Found respondent’s actions essentially peremptory in nature and failed to follow procedure in letter sent to applicant – Dismissal procedurally unjustified – Remedies – No contributory conduct – Reinstatement declined – Found applicant not entitled to reimbursement of lost wages as genuine redundancy – Found $2,500 compensation appropriate – GOOD FAITH – Authority found no substance to misleading or deceptive conduct allegations – PENALTY – Authority found in absence of request for penalty for failure to provide employment agreement no order made – Clerical worker |
| Result | Application granted ; compensation for humiliation etc ($2,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114;ERA s63A(3);ERA s133;ERA s135;ERA s135(5) |
| Cases Cited | Harris v Charter Trucks Ltd [2007] NZEmpC 169 |
| Number of Pages | 11 |
| PDF File Link: | aa 244_09.pdf [pdf 37 KB] |