| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 110/10 |
| Hearing date | 15 Oct 2009 |
| Determination date | 10 March 2010 |
| Member | V Campbell |
| Representation | B Braatvedt ; D France |
| Location | Hamilton |
| Parties | Nicholls v Redeal Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by non payment of incentive bonus - Applicant one of three branch managers mistakenly advised would receive bonus - Applicant immediately contacted once respondent realised mistake - Respondent’s evidence applicant confirmed did not expect bonus accepted - Found applicant acknowledged branch not achieving sales targets required to achieve bonus - Found neither applicant’s employment nor conditions of employment affected to his disadvantage by being initially advised would receive bonus then informed of error - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed redundancy not genuine as tasks still needed to be performed and redundancy used as way to get rid of him as had relationship issues with Area Manager (“B”) - Found respondent affected by downturn in construction industry and four branches had been closed - Found any relationship issues between applicant and B not factor in disestablishment of role - Found as far as respondent aware issues between applicant and B had been resolved - Applicant claimed branch manager position re-established within six months of termination - Found evidence showed position not re-established - Found redundancy genuine - Applicant claimed were procedural deficiencies - Found applicant given adequate time to provide feedback on restructuring - Found respondent acting in good faith in its desire to receive feedback - Applicant claimed was no selection process between himself and B for appointment to role - Authority found was case where current area manager role was to absorb a subordinate role not case were new role created or where one of two similar positions disestablished - Found in circumstances no selection process necessary - Found respondent’s actions those of fair and reasonable employer - Dismissal justified - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant given two months written notice of redundancy - Applicant resigned before expiration of notice period - Applicant claimed resignation was constructive dismissal - Authority noted had already found redundancy genuine and procedurally fair - Found no evidence to support claim respondent breached its obligations to applicant with respect to restructuring - Found evidence did not support finding applicant’s relationship with B impacted decision to resign or forced applicant to resign - Found no breach by respondent that would make applicant’s resignation reasonably foreseeable - No constructive dismissal - Branch Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Communication & Energy Workers Union Inc v Telecom NZ Ltd [1993] 2 ERNZ 429;GN Hale & Sons Ltd v Wellington, Taranaki and Nelson Caretakers etc IUOW [1990] 2 NZILR 1079 ; [1991] 1 NZLR 151 ; (1990) 3 NZELC 97,985 ; (1990) ERNZ Sel Cas 843;Malik v Bank of Credit and Commerce International SA (in liq) [1997] 3 All ER 1;Mason v Health Waikato Ltd (in respect of the former Waikato Area Health Board) [1998] 1 ERNZ 84;McCosh v National Bank of New Zealand Ltd unreported, Colgan J, 13 Sep 2004, AC 49/04;New Zealand Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739 ; [2000] 2 NZLR 565;NZ Storeworkers etc IUOW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 |
| Number of Pages | 10 |
| PDF File Link: | aa 110_10.pdf [pdf 38 KB] |