| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 129/09 |
| Hearing date | 20 May 2009 - 10 Jun 2009 (3 days) |
| Determination date | 09 September 2009 |
| Member | P R Stapp |
| Representation | S Dyhrberg ; S Hornsby-Geluk, J King |
| Location | Wellington |
| Parties | Rawiri v The Attorney-General in respect of the Chief Executive of the Inland Revenue Department |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s refusal to pay “retiring leave” – Applicant accepted role with another employer (“A”) and gave notice of retirement to respondent – Respondent’s chief information officer (“H”) became decision maker when formed different opinion regarding entitlement to applicant’s manager – Respondent advised applicant “retiring leave” declined because did not believe applicant intended to permanently leave workforce and sought meeting with applicant – H concluded applicant did not genuinely indicate intended to leave workforce – H argued applicant suggested may look for work elsewhere – Applicant did not disclose intention to work for A because not asked – H confirmed decision declining applicant’s request on basis did not accept applicant intended to leave workforce permanently – Applicant declined respondent’s offer of “resigning leave” claiming still entitled to “retiring leave” – Subsequently respondent discovered applicant working full time in Wellington, not in Hamilton caring for wh�nau as claimed led to believe – H concluded deliberately misled by applicant when impression created going to retire – Applicant claimed entitlement to receive “retiring leave” arose out of decision to retire – Parties accepted meaning of “retirement” not readily discerned from employment agreement (“EA”) – Authority found failure of parties to agree to threshold criteria left “retiring leave” provision open to interpretation – Respondent contended policy made with regard to usual and widely held meaning of “retiring” – Respondent argued eligibility for “retiring leave” employee must be intending to retire by permanently leaving workforce – EA provided retiring leave entitlement available to employees with 20 years service – EA also contained “resigning leave” provision – Authority found applicant attempted to maximise “retiring leave” entitlement in EA because had sufficient service to claim retiring leave – Applicant claimed only requirement to obtain entitlement was agreeing with respondent date of retirement – Authority accepted no eligibility criteria in EA except service requirement – Authority noted eligibility previously clear cut where had qualifying age, however, not so now where retirement did not necessarily mean permanent retirement from workforce - Authority noted employer could not unreasonably deny employee right to retire by refusing to accept retirement date – Authority found not case here as respondent raised with applicant issues related to understanding of meaning of retirement – Found respondent accepted applicant’s last day although declined to accept retirement for purposes of obtaining “retiring leave” – Authority found another way of looking at problem was applicant could have asked for both “resigning leave” and “retiring leave” because EA did not say could not have both – Analysis presupposed provisions separate and distinguishable because choice made by applicant – Respondent asked Authority to apply previous cases interpreting “retirement” as implying end of career or working life – Authority found words in “resigning leave” provision stated “resigning leave may be granted to employees who have not reached their eligibility to retire” was overwhelming factor supporting respondent’s position – Found existence of two provisions must relate to something, otherwise meaningless – Found provisions stand alone and did not apply in circumstances where could resign or retire – Authority found respondent permitted to put meaning to word “retire” and assess whether employee permanently leaving workforce – Authority found dispute could be resolved having regard to interpretation and application of retiring leave provision – Authority found several factors supported meaning provided by respondent – Found case law indicated retiring meant to disengage – Found human resources manual dealt with protected entitlement with references alluding to leaving workforce – Authority found accepted respondent’s conclusion applicant not retiring because had another job – Authority found job arranged despite advice to respondent regarding intention – Authority found open to respondent to apply principled assessment on protected terms – Authority found respondent did not take age as the predominant factor in making decision – Found H’s reasoning based on not being convinced applicant intending to permanently leave workforce – Found respondent relied upon genuine issue of interpretation and application of term of employment under which decided not to pay out “retiring leave” – Found no unjustified disadvantage as respondent used principled reasoning and engaged applicant in process before decision made – Enterprise architect |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Brooker v State Insurance Ltd [2000] 2 ERNZ 274;Auckland Provincial District Local Authorities Officers IUOW v Glen Eden Borough Council [1983] ACJ 479;Auckland Provincial Local Authorities Officers Union v Takapuna City Council [1978] ACJ 153;Lower Hutt City v Martin [1987] 1 NZLR 321;Radford v Westreef Services Limited unreported, P Cheyne, 9 May 2008, CA 51/03;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767 |
| Number of Pages | 14 |
| PDF File Link: | wa 129_09.pdf [pdf 53 KB] |