| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 4/10 |
| Hearing date | 7 Jan 2010 |
| Determination date | 11 January 2010 |
| Member | D King |
| Representation | K Beck ; P Kiely, D Erickson |
| Location | Auckland |
| Parties | Eastern Bay Independent Industrial Workers Union Inc v Carter Holt Harvey Limited |
| Other Parties | Ohlson, Mokomoko, Pomare, Tait |
| Summary | INJUNCTION – Second applicants sought interim reinstatement – Second applicants, members of first applicant union, claimed unjustifiably dismissed for redundancy - Both applicants sought order restraining respondent from implementing decision to outsource saw doctoring service to contractors (“C”) – Applicants also claimed respondent breached agreement to resume bargaining on employment protection provision (“EPP”) and hold restructuring in abeyance upon receiving Employment Court judgment – Applicants also claimed respondent breached employment agreement, unjustifiably suspended second applicants and breached good faith obligations - Authority found two of applicants advised positions redundant at meeting without prior notice, and request for representation initially declined – Found applicants had strongly arguable case dismissal unjustified – Found reinstatement in redundancy grievance possible if redundancy’s genuineness or selection process contested – Found applicants did not claim ulterior motive or sham redundancy – Authority not satisfied applicants had arguable case for reinstatement - Authority found detriment to second applicants of not working outweighed detriment to respondent who had ability to pay both second applicants and C – Found no evidence second applicants unable to meet undertakings, and receiving large redundancy payments – Found likely delay of two to four months before substantive determination was factor in favour of second applicants – Found no evidence of impact on C or disruption of respondent’s business – Authority rejected respondent’s argument of prejudice to business - Found C had offered employment to two of second applicants – Found entry into negotiations for EPP would not mean EPP would be concluded – Found balance of convenience favoured applicants – Found despite balance of convenience favouring applicants, overall justice of case favoured respondents due to low likelihood of permanent reinstatement being granted – Authority noted applicants rejected consideration of garden leave – Interim reinstatement declined – Saw doctors |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s69OI;ERA s69OJ;ERA s103A |
| Cases Cited | Cliff v Air NZ Ltd , unreported, 24 February 2005, Colgan J, AC 6A/05;Eastern Bay Independent Industrial Workers Union Inc and Anor v Carter Holt Harvey Ltd [2009] ERNZ 334;Eng Mee Yong v Letchumanan [1980] AC 331;G N Hale and Son Ltd v Wellington Caretakers etc IUOW [1990] 2 NZILR 1079;Langston v Amalgamated Union of Engineering Workers [1974] 1 All ER 980;Madar v P & O Services (NZ) Ltd [1999] 2 ERNZ 174 (CA);McDonald v Television NZ Ltd, unreported, 12 October 1993, Travis J, AEC 50/93;Port of Wellington Ltd v Longwith [1995] 1 ERNZ 87 (CA);Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825;X v Y Ltd v NZ Stock Exchange [1992] 1 ERNZ 863 |
| Number of Pages | 14 |
| PDF File Link: | aa 4_10.pdf [pdf 43 KB] |