| Summary |
UNJUSTIFIED DISMISSAL – Respondent took over contract of applicant’s former employer (“D”) - Applicant claimed unjustifiably dismissed when respondent refused to engage him in takeover – Respondent argued no duty to employ applicant, as applicant not employee able to transfer to new employer under Part 6A Employment Relations Act 2000 (“ERA”) – D employed applicant as bus shelter cleaner – Respondent won contract and employed maintenance technicians to cover all bus shelter maintenance duties, including cleaning, installation and basic maintenance – Two months before transfer, D wrote letter to respondent advising must employ applicant on same contract – Respondent not aware of letter until one week before transfer – Respondent argued not aware during contractual negotiations that applicant wished to transfer employment – Around time of takeover, respondent invited applicant to apply for vacant position – Respondent adamant employment would be on respondent’s standard terms and conditions, including probation period, different hours and different duties – Applicant declined job as considered terms and conditions unacceptable – Applicant raised grievance – Authority found Part 6A ERA applied as was subsequent contracting situation – Found if applicant was worker covered under Schedule 1A ERA, may have elected to transfer to respondent – Found applicant elected to transfer in time, at last minute – Found sole issue therefore whether applicant’s work for D constituted cleaning services – Cleaning services not defined in ERA – Respondent mistakenly believed applicant carried out installation and maintenance as well as cleaning – Authority found despite respondent’s understanding at time, applicant only cleaned bus shelters – Found bulk, if not almost all, of applicant’s work constituted ‘cleaning’ in traditional sense – Found as applicant provided cleaning services, entitled as of right to transfer into respondent’s employment on same terms and conditions as had with D – Found applicant effectively summarily unjustifiably dismissed on transfer date, as respondent refused to accept legal situation that applicant was its employee - Dismissal unjustified – Remedies – No contributory conduct – Authority found applicant may have been prepared to accept work as maintenance technician, if on existing terms and conditions – However, found could not rule out possibility applicant made redundant, as respondent’s staffing needs different to D’s – Found in case of redundancy applicant would have been entitled to one week’s notice plus redundancy compensation - Found reasonable for applicant to decline position offered by respondent due to fundamental changes to employment – Found reasonable for applicant to wait ten weeks before looking for work as did not understand obligated to look for other work when expecting reinstatement – Found no further lost remuneration award because of later inadequate efforts to find work – Found lost remuneration of $7,200 appropriate – Found applicant suffered stress in tough employment market and depressed – $7,000 compensation appropriate – Applicant entitled to filing fee - Bus shelter cleaner |