| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 145/10 |
| Hearing date | 7 May 2009 - 14 Sep 2009 (3 days) |
| Determination date | 26 March 2010 |
| Member | R A Monaghan |
| Representation | G Finnigan, A Williamson ; A Caisley, R Larmer |
| Location | Auckland |
| Parties | Henshaw v Auckland Institute of Studies Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant raised number of unjustified disadvantage grievance claimed based on alleged unfair or unjustified elements of redundancy – Respondent concerned about falling student numbers – Respondent identified number of changes that needed to be made, including redundancies – Following consultation and selection process applicant and three other staff selected for redundancy – Respondent’s human resources manager (“K”) married to affected staff member (“F”) – F not selected for redundancy – Respondent claimed K not decision maker and role was administrative and to ensure proper process followed – Staff raised concerns about K’s involvement in process - Found perception of bias and conflict of interest not sufficiently addressed by respondent which caused disadvantage – Found disadvantage was unjustified - Remedies – No loss of remuneration resulted from unjustified disadvantage – Found some injury to applicant’s feelings – Modest award of $1,000 compensation appropriate - Applicant claimed had F not been appointed to his position would have been one less position to make redundant – Authority found nothing inappropriate about F’s appointment at time made – Applicant claimed selection criteria not completely fair and reasonable – Found criteria fair and reasonable and not in breach of respondent’s Policies and Procedures – Found many of issues raised about criteria were decisions that were fairly within province of management – No unjustified disadvantage – Applicant claimed criteria not applied to her fairly – Authority found criteria applied fairly and reasonably - Respondent appointed independent moderator to assess staff evaluations - Applicant challenged independence of moderator – Applicant claimed moderator had vested interest in outcome of evaluations as had enquired about employment opportunities with respondent and appointed to position six months after redundancies – Applicant also suggested applicant had personal knowledge of F - Found no merit in challenge to moderator’s independence – Found nothing inappropriate or unfair in appointment of moderator – No unjustified disadvantage – Applicant claimed pool of potentially redundant employees should have been limited to staff employed in arts programme – Authority found respondent’s decision not to limit pool of staff reasonably open to it and made on genuine grounds – No unjustified disadvantage - Applicant claimed voluntary redundancies should have been sought – Found no binding obligation on respondent to seek voluntary redundancies – No unjustified disadvantage – Applicant claimed not given opportunity to discuss her assessment against selection criteria before redundancy decision made – Found failure to discuss was flaw in process – Found was unjustified - Found failure disadvantaged applicant as not given opportunity to reply – Remedies - No loss of remuneration resulted from unjustified disadvantage – $3,000 compensation appropriate - Applicant claimed respondent failed to give opportunity to obtain representation – Found no contractual entitlement to offer opportunity to obtain representation - Found staff actively involved in consultation process, acted as a group and supported each other and did not raise a wish or need from representation – No unjustified disadvantage - Applicant claimed should have been offered vacant position after made redundant – Applicant’s termination letter advised would be placed at top of list for any fixed term or relieving work in area of expertise – Applicant and another redundant employee applied for vacant position – other employee chosen – Authority found were vacant position attracts more than one applicant with preferential rights employer entitled to make selection on basis of which applicant more suitable – Found no breach of respondent’s obligations – No unjustified disadvantage - UNJUSTIFIED DISMISSAL – Redundancy – Applicant accepted redundancy genuine but claimed elements of selection for redundancy and implementation made dismissal unjustified – Authority found certain of respondent’s actions unjustified and caused applicant disadvantage – However, found actions, whether separately or cumulatively, not sufficient to make dismissal unjustified – Found because K not decision maker perception of bias and conflict of interest, while flawed, did not make dismissal unjustified - Found number of other actions not unjustified – Found overall respondent’s actions those of fair and reasonable employer – Dismissal justified - Senior lecturer/Deputy Head, International Business programmes |
| Result | Application granted (Unjustified disadvantage - Role of human resources manager and consultation about evaluation) ; Compensation for humiliation etc ($1,000)(Role of human resources manager) ; Compensation for humiliation etc ($3,000)(consultation about evaluation) ; Applications dismissed (Unjustified dismissal)(all other unjustified disadvantage claims) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A |
| Cases Cited | Bowden v News Media (Auckland) Limited unreported, BM Stanton, 21 Jul 1992, AT 130/92;Priest & Anor v Fletcher Challenge Steel Ltd t/a Fletcher Challenge Steel & Wire, formerly Pacific Steel Ltd [1999] 2 ERNZ 395;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 25 |
| PDF File Link: | aa 145_10.pdf [pdf 67 KB] |