| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 163/09 |
| Hearing date | 30 Sep 2009 |
| Determination date | 27 October 2009 |
| Member | D Asher |
| Representation | JA Burney ; C McLorinan |
| Location | New Plymouth |
| Parties | Tuuta and Ors v Olex New Zealand Ltd and Anor |
| Other Parties | Gladding, Toa-Waiere, Pue, Olex New Zealand Ltd, New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicants claimed redundancy unjustified as selection criteria not fairly applied – Respondent argued selection consistent with collective employment agreement (“CEA”), fairly applied therefore dismissal justified – Clause 12.2.2 of CEA provided technicians employed before specified date would be last “considered” in redundancy – Clause 12.2.3 provided respondent reserved right to continue employment of selected employees based on “special skills and attributes” necessary for respondent’s operations – Respondent first considered technicians employed after specified date and then technicians employed before specified date to ensure appropriate skills balance - Respondent used standardised objective selection criteria and ranked employees from 1 to 5 – Respondent retained technicians employed after specified date due to need for special skill and attributes - Applicants claimed unfairly selected as respondent marked down applicants based on reasons not previously raised or raised after redundancy decision made – Authority found respondent able to make applicants redundant pursuant to clauses 12.2.2 and 12.2.3 – Found respondent acted consistently with clauses by considering both sets of employees and had regard to desired skills level required to maintain operations – Found selection criteria fair and reasonable – Found respondent relied upon complaints made against applicants to downgrade applicants on selection criteria standard – Found complaints not put to applicants before decision made or raised after decision made - Found selection criteria not fairly applied to applicants – Dismissal unjustified – REMEDIES – No contributory conduct – No reimbursement of lost wages awarded – Found $4,000 compensation each appropriate – BREACH OF GOOD FAITH – Applicant employer was respondent in unjustified dismissal claim above – Applicant employer sought penalty for respondent union’s breach of good faith obligations – Applicant employer claimed respondent union failed to be active and constructive in restructuring process – Respondent union argued union delegates raised concerns about clauses 12.2.2 and 12.2.3 – Argued discovered late in restructuring process employees employed before specified date faced redundancy – Argued issue of unfair application of selection criteria became clear after redundancy letters issued – Authority found speed applicant employer undertook restructuring process tested parties’ communications – Found respondent union raised some concerns, and whatever shortcomings in respondent union’s actions, not sufficient to breach good faith – No breach – Penalty declined |
| Result | Application granted (Unjustified dismissal) ; Applications dismissed (Breach of good faith)(Penalty) ; Compensation for humiliation etc ($4,000)(First applicant)(Second applicant)(Third applicant)(Fourth applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 |
| Number of Pages | 9 |
| PDF File Link: | wa 163_09.pdf [pdf 38 KB] |