| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 3/10 |
| Hearing date | 24 Nov 2009 |
| Determination date | 11 January 2010 |
| Member | D Asher |
| Representation | N Flint ; M Richards, R Wilson |
| Location | Wellington |
| Parties | Kirk v Chief Executive, Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Redundancy – Constructive dismissal – Good faith - Applicant’s position disestablished after respondent’s restructure – Respondent advised applicant positions of area accountant and regional accountant (“RAM”) were suitable alternatives – Applicant advised respondent neither positions suitable and requested severance payment – Respondent’s manager (“X”) declined applicant’s request and proposed reassignment to RAM position – Applicant declined offer and resigned – X sought meeting to discuss resignation and alternative options – Applicant declined request – Personal grievance raised – Applicant claimed RAM not comparable as position of lower rank, decreased salary, and different duties – Argued position contestable as another employee expressed interest therefore RAM should have been offered to the incumbent at instance with redundancy compensation payable to applicant – Claimed disparate treatment – Claimed entitled to redundancy compensation - Respondent argued RAM position objectively comparable – Argued applicant failed to resolve issue using internal procedures - Authority found RAM “narrowly” comparable to original position – Position lower rank however would manage bigger budget – RAM position included salary increase – Found applicant arguably breached good faith by failing to use internal review procedure to resolve matters – Found no evidence of predetermination and disparate treatment – Found not entitled to redundancy compensation - No constructive dismissal – No disadvantage – Regional Finance and Planning Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Auckland Regional Council v Sanson [1999] 2 ERNZ 597;Pilgrim v Director General of Health [1992] 3 ERNZ 190;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917 |
| Number of Pages | 10 |
| PDF File Link: | wa 3_10.pdf [pdf 32 KB] |