| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 160/10 |
| Hearing date | 31 Mar 2010 |
| Determination date | 07 April 2010 |
| Member | R Arthur |
| Representation | M McFadden ; J Foden |
| Location | Auckland |
| Parties | Naiker v D S Wireless Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed redundancy not genuine and decision made for ulterior motives - Applicant’s wife (“wife”) worked for respondent and was dismissed over allegations of theft - Five days later applicant called to meeting to discuss restructuring proposal and possible redundancy - Following brief consultation period applicant dismissed for redundancy - Respondent claimed redundancy genuine and timing with wife’s dismissal purely coincidental - Authority found genuine commercial reasons for redundancy - However, found inadequate explanation and supporting evidence for timing of review and dismissal decision - Found likely but for wife’s dismissal review and any dismissal would have occurred later - Found mixed motives for redundancy at time decision made - Found predominant reason for timing of dismissal not genuine business reasons - Respondent’s evidence that at time of redundancy believed applicant had no involvement or knowledge of wife’s activities accepted - However, applicant’s employment effected because of marriage to wife - Respondent discriminated against applicant on grounds of family status - Found respondent did not consult in good faith with applicant about redundancy - Found two alternative positions applicant offered were on significantly reduced terms - Dismissal unjustified - Remedies - No contributory conduct - Found likely applicant would have been made redundant few months later - Found notice period payment covered period would have awarded reimbursement of lost wages for - No award for lost wages - Found dismissal abrupt and distressing for applicant - $5,000 compensation appropriate - UNJUSTIFIED DISADVANTAGE - Following wife’s dismissal applicant suspended on pay while respondent carried out investigation - Found employment agreement provided for suspension - Found suspension justified - No unjustified disadvantage - Product Manager |
| Result | Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($5,000) ; Application dismissed (Unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(c);ERA s4(4);ERA s103A;ERA s104(1)(b);ERA s105;Human Rights Act 1993 s21(1)(l)(iii) |
| Cases Cited | Coutts Cars Ltd v Baguley [2001] ERNZ 660;Forest Park (NZ) Ltd v Adams [2000] 2 ERNZ 310;GN Hale & Sons Ltd v Wellington Caretakers IUOW [1990] 2 NZILR 1079 ; [1991] 1 NZLR 151 ; (1990) 3 NZELC 97,985 ; (1990) ERNZ Sel Cas 843;Nelson Aero Club Inc v Palmer unreported, Shaw J, 7 Mar 2000, WC 10A/00;NZ Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739;Rolls v Wellington Gas Co [1998] 3 ERNZ 116;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40;Simpsons Farms Limited v Aberhart [2006] ERNZ 825 |
| Number of Pages | 12 |
| PDF File Link: | aa 160_10.pdf [pdf 35 KB] |