| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 165/09 |
| Hearing date | 17 Sep 2009 |
| Determination date | 27 October 2009 |
| Member | G J Wood |
| Representation | D McLeod ; S Webster |
| Location | Napier |
| Parties | Carroll v Te Taiwhenua o Te Whanganui a Orutu |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed when declined new employment agreement (“EA”) terms and conditions – Respondent argued applicant casual employee until business restructure ended therefore no dismissal occurred – Argued alternatively applicant on fixed term EA therefore dismissal justified – Respondent advertised for staff to work “24/7” roster – Applicant successfully applied and moved to new city – Applicant worked 24/7 roster, received holiday pay, ordinary pay and causal holiday pay – Applicant paid fortnightly consistent with full-time permanent staff – Applicant queried arrears of wages for public holiday and respondent advised applicant causal employee – Applicant had no reason to believe position casual when employment commenced – Advertisement did not state employment temporary, standard EA consistent with ongoing employment, and applicant not advised by respondent employment temporary – Applicant subsequently paid day in lieu – Respondent offered applicant new position due to business restructure which included lesser wage rate and hours – Applicant prepared to accept new position but not new EA – Respondent advised had to accept position soon – Applicant raised unjustified disadvantage grievance indicating to respondent would work new hours but wanted to be paid for 48 hours per week and retain current wage rate – Respondent responded applicant causal employee and position terminated – Authority found applicant not casual employee as applicant worked regular hours over extended period – Found no fixed term EA as no agreement employment would end on occurrence of specified event – Found if there was such condition, condition not in writing therefore could not be relied on to end employment relationship – Found applicant’s employment indefinite and current EA terms and conditions clear – Found respondent could not unilaterally impose new EA terms – Found applicant dismissed when resisted change to EA – Found respondent should have consulted applicant on new EA terms and discussed redundancy – Found if respondent had entered into good faith consultations, applicant’s employment may have continued under new EA or ended justifiably – Dismissal unjustified – REMEDIES – No contributory conduct – Found appropriate to limit reimbursement of lost wages to 8 weeks as applicant failed to mitigate loss by limiting alternative employment to similar but unavailable roles in applicant’s region – Found $8,000 compensation appropriate as applicant suffered depression and financial loss – Residential Support Worker |
| Result | Application granted ; Reimbursement of lost wages ($10,368) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s66(4) |
| Cases Cited | Lee v Minor Development Ltd T/a Before Six Childcare Centre unreported, Shaw J, 23 Dec 2008, AC 52/08 |
| Number of Pages | 8 |
| PDF File Link: | wa 165_09.pdf [pdf 38 KB] |