| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 172/09 |
| Hearing date | 18 Jun 2009 - 17 Sep 2009 (3 days) |
| Determination date | 12 October 2009 |
| Member | J Crichton |
| Representation | J Shingleton ; J Goldstein |
| Location | Christchurch |
| Parties | Connelly and Ors v Moorhouse Kitchen and Appliances Ltd |
| Other Parties | Connolly, Fox |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Redundancy – Applicants (“C1”, “C2”, and “F”) claimed unjustifiably dismissed and unjustifiably disadvantaged and sought claims determined together – C1 mother of C2 – Respondent denied applicants unjustifiably dismissed or suffered unjustified disadvantage – Respondent argued undertook legitimate and genuine restructure which had consequence that applicants’ lost positions because of complete closure of service department (“SD”) – Authority found in effect applicants were respondent’s entire SD – Respondent argued at all relevant times C1 aware of SD’s financial position – Respondent’s managing director (“M”) told C1 in meeting service centre unprofitable and pressure to turn around profitability or there would be restructuring – C2 claimed heard SD would close unless put through more work – C2 claimed observations made by M seemed “almost as a joke” – Authority found M serious and no joke intended or implied - M conducted interview with F about complaint received from customer about F – Customer did not want F to know who complainant was – M spoke with F and re-emphasised F to only go into parts of customer’s house necessary to perform duties – F claimed not told who complaint was from and no real opportunity to address issue – M called applicants to meeting to provide information about possible restructure of SD – M argued meeting designed to convey information SD losing money and if could not find way of increasing revenue and decreasing costs then would close – Applicants claimed at no time made clear SD could close or jobs at risk – Subsequently parties met to scope alternative strategies – Applicants claimed without being given proper opportunity to consider suggestions, received letter with formal restructuring proposal making clear positions could be redundant as consequence of possible restructure – Respondent argued letter did no more than crystallise proposal already verbally expressed at earlier meeting – C1 raised personal grievances on behalf of applicants – Respondent argued from point of notification of disestablishment of positions applicants became disinterested in workplace – Two incidents occurred resulting in C1 and C2 leaving workplace, with C1 resigning without notice – Authority found C1 knew about financial situation SD operating in – Found clear from evidence M and wife regularly raised with C1 concern about financial performance of SD – Authority satisfied only F did not hear comments about possible closure of SD – Found C1 provided with regular monthly updates of SD’s financial performance and had obligation to ensure F and C1 generally aware of respondent’s concerns – Found C2 mistaken in oral evidence and did receive email correctly stating M spoke of possibility of closure of SD – Found meeting not part of formal consultation process but simply provision of information about possible restructuring – Found applicants formally told may lose positions at meeting – Found subsequent letter sent by respondent formally set out consequences of proposed restructure if was to proceed – Found no intimation in letter that decision made to proceed with restructure – Authority found letter properly alerted to applicants consequences of restructure if proposal went ahead – Found subsequent meetings simply consultation process respondent obligated to undertake – Incident occurred when respondent sought explanation from C1 after C2 and F left workplace after prior incident – M asked C1 to remove password from respondent’s computer – M argued had discussion with C1 without raising voice or becoming excitable – Authority found evidence did not suggest anything other than normal discussion – C1 claimed M shouted, became excitable, and C1 effectively kept hostage and berated – C1 claimed called C2 for protection and also rang counsels personal assistant (“PA”) reporting effectively under attack from M – Authority did not accept what C1 told PA truthful – Found C1 made up version of events to create more drama and colour – Authority accepted M’s evidence that alleged notes being kept by C1 completely erroneous – Authority found C1 deliberately fabricated evidence – Found C1, C2, and F not truthful witnesses – Credibility finding in favour of respondent – Authority dismissed C1’s constructive dismissal claim – Authority found F’s disadvantage grievance on own facts not made out – Found redundancy genuine – Found financial evidence for closure compelling – Authority satisfied respondent met process and good faith obligations – Authority rejected respondent’s counterclaim C1 sabotaged respondent once redundancy possibility apparent – Found no evidence actual economic harm caused by C1 – Authority rejected applicants’ claims for penalty for unreasonable delay in provision of final wages – Applicants also claimed respondent failed to properly consider whether C2 and F could have been retained as contractors – Authority found respondent not obligated to “re-open” restructuring process to consider proposal not made in timely fashion – Authority concluded no evidence to suggest restructuring anything other than genuine attempt to deal appropriately with unsatisfactory financial situation – Applications dismissed – C1 (Service manager) ; C2 (Service technician) & F (Service technician) |
| Result | Applications dismissed ; Counterclaim dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Simpson Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 21 |
| PDF File Link: | ca 172_09.pdf [pdf 63 KB] |