| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 40/10 |
| Hearing date | 17 Sep 2009 |
| Determination date | 03 February 2010 |
| Member | J Wilson |
| Representation | P Wicks ; C Patterson |
| Location | Auckland |
| Parties | Guida v Ogilvy New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Respondent purchased applicant’s advertising agency - Applicant became employee of respondent for three year fixed term - Purchase price was initial payment followed by three further payments to be made over consecutive years provided applicant employed by respondent and other conditions met - Applicant’s employment agreement included redundancy clause - When applicant queried redundancy clause assured was standard clause and would never be invoked - Applicant subsequently dismissed for redundancy and informed would not receive three further payments - Authority found respondent did not guarantee applicant would not be made redundant rather reassured applicant had no intention of making him redundant - Found assurance given to applicant not contractual guarantee would not be made redundant so did not override specific wording of redundancy clause - Applicant did not dispute respondent seriously affected by global economic downturn - Authority found redundancy for genuine economic reasons - Found redundancy not procedurally fair - Found if applicant ordinary employee consultation process may have met minimum test for being fair and reasonable - However, found as applicant had recently sold business to respondent in good faith and had agreed purchase price to be paid over three years applicant should have been treated more sympathetically and more than mere consultation and reliance on redundancy clause needed - Found applicant not only lost job but three annual payments for sale of business - Found in applicant’s particular circumstances respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - No contributory conduct - As genuine redundancy no entitlement to reimbursement of lost wages - Applicant claimed depressed and unmotivated, sleep affected and pride hurt following dismissal - Applicant’s wife gave evidence applicant angry, frustrated and always on edge - Applicant felt was not just redundancy but unprofessional betrayal of trust - $15,000 compensation appropriate |
| Result | Application granted ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Kluskens v James Hardie Building Services and Technologies New Zealand Ltd unreported, Travis J, 09 May 1997, AEC 36/97;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825 |
| Number of Pages | 12 |
| PDF File Link: | aa 40_10.pdf [pdf 43 KB] |