| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 9/10 |
| Determination date | 14 January 2010 |
| Member | R A Monaghan |
| Representation | S Austin ; K Stretton |
| Location | Auckland |
| Parties | Visser v Waiotahi Contractors Ltd |
| Summary | INJUNCTION - Application for interim reinstatement - Applicant’s employment terminated for redundancy - Applicant claimed dismissal unjustified - Applicant claimed redundancy not genuine - Applicant claimed as former duties still existed position still existed - Found mere continued existence of duties did not necessarily mean position continued to exist - Found number of applicant’s examples of respondent’s conduct suggesting redundancy not genuine was simply consequence of respondent continuing to trade and maintain workforce - Applicant made unsubstantiated claim targeted for redundancy - Found without evidence could not make finding on whether issue arguable - Authority set issue aside for purposes of interim reinstatement application - Applicant claimed respondent followed unfair procedure and was lack of consultation - Found on available material, even resolving conflict in accounts of consultation in respondent’s favour, consultation did not meet requirements - Found applicant had arguable case redundancy procedurally unjustified - Found applicant had no more than weakly arguable case redundancy not genuine - Applicant claimed balance of convenience in his favour because of effect of dismissal on financial circumstances - Respondent claimed any losses applicant suffered could be remedied by orders available if dismissal found to be unjustified - Respondent claimed no position for applicant to be reinstated to - Found respondent provided no other information about why balance of convenience in their favour - Found loss of income had significant impact on applicant’s finances - Found balance of convenience favoured applicant - Found prospect of ultimate reinstatement appropriate consideration in interim reinstatement application - Found prospect to be assessed with reference to fact reinstatement primary remedy but also that to be awarded where practicable - Found in general where position disappeared through genuine redundancy unlikely reinstatement practicable - Found weakness of argument regarding genuineness led Authority to conclude likelihood of reinstatement not practicable even if dismissal found to be unjustified - Overall justice favoured respondent - Application for interim reinstatement declined - Project manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s4(1A);ERA s103A |
| Cases Cited | Counties Manukau District Health Board v Trembath [2001] ERNZ 847;Madar v P & O Services (NZ) Ltd [1999] 2 ERNZ 115;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 10 |
| PDF File Link: | aa 9_10.pdf [pdf 34 KB] |