| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 136/10 |
| Hearing date | 24 Nov 2009 |
| Determination date | 24 March 2010 |
| Member | V Campbell |
| Representation | J Watson ; No appearance |
| Location | Hamilton |
| Parties | Kain v Parnell Laboratories New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – No appearance for respondent - Applicant claimed redundancy substantively and procedurally unjustified – Respondent advised employees intention to develop new strategy due to financial reasons – Respondent sought submissions to assist in decision making – Respondent identified key factors which would be taken into account for new strategy – No proposal for new structure made – Applicant attended meeting where respondent presented new business structure for first time – Respondent later advised applicant made redundant – Advised had two options – First, terminate contract by payment in lieu of notice – Second, go on garden leave for duration of one month notice period with continued use of company car – Applicant dismissed before had opportunity to obtain legal advice – Personal grievance raised – Authority found respondent failed to prove redundancy for genuine business reasons – Found respondent obliged to consult applicant in good faith about new structure as impacted on applicant’s position - Found respondent consulted applicant on broad strategy but failed to consult over proposed new structure – Found respondent did not provide applicant with selection criteria for redundancy – Found no reason for hasty dismissal – Found had applicant been consulted, may have been different outcome - Found redundancy procedurally unjustified – Found applicant given ultimatum without reasonable opportunity to get advice, be represented, or comment on new structure – Dismissal unjustified – Applicant claimed respondent breached employment agreement (“EA”) by not providing written notice of dismissal – Found applicant not provided written notice at time of dismissal – Found respondent later provided written notice when matter raised by applicant – No breach - REMEDIES – No contributory conduct – Reimbursement of 5 months lost wages award – Reimbursement of lost benefit for use of company vehicle - $10,000 compensation appropriate – ARREARS OF WAGES – ARREARS OF HOLIDAY PAY – Applicant sought commission and outstanding bonus payments as part of Bonus and Commission Scheme 2008 – Applicant claimed eligible for Scheme and Scheme part of EA – Respondent argued payments discretionary – Authority found applicant entitled to receive commission payments as Scheme part of EA – Found while respondent had discretion to vary Scheme, respondent had to consult applicant prior to varying or withholding payments – Respondent ordered to pay applicant $2,194 outstanding commission and bonus payments – Applicant sought arrears of holiday pay – Respondent ordered to pay applicant $1,764 arrears of holiday pay – Interest payable - RECOVERY OF MONIES – Applicant sought recovery of $509 unlawfully deduced from final pay – EA provided applicant needed to be advised of reasons for deduction – Found respondent failed to follow obligations in EA therefore deduction unlawful – Respondent ordered to reimbursement applicant $509 – Interest payable - COUNTERCLAIM – Respondent claimed applicant breached express and implied duties owed to respondent – Authority dismissed counterclaim for respondent’s non-appearance – COSTS – Applicant sought full costs award of $6,888 plus disbursements – Authority found full costs award not appropriate – Found $4,000 reasonable contribution to costs – Costs in favour of applicant – Area Manager |
| Result | Applications granted ; Counterclaim dismissed ; Arrears of wages ($2,194.85)(Commission payments)(Bonus payments) ; Arrears of holiday pay ($1,764.11) ; Recovery of monies ($509.96) Interest (4.5%)(Payable on arrears of wages)(Payable on arrears of holiday pay)(Payable on reimbursed deduction) ; Reimbursement of lost wages ($31,104.65) ; Reimbursement of lost benefits ($1,083.33)(Lost use of company car) ; Compensation for humiliation ($10,000) ; Costs in favour of applicant ($4,000) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s131;ERA Second Schedule cl11(1);ERA Second Schedule cl12 |
| Cases Cited | Communication & Energy Workers Union Inc v Telecom NZ Ltd [1993] 2 ERNZ 429;GN Hale & Sons Ltd v Wellington Caretakers IUOW [1990] 2 NZILR 1079 ; [1991] 1 NZLR 151;New Zealand Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825;Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 |
| Number of Pages | 12 |
| PDF File Link: | aa 136_10.pdf [pdf 51 KB] |