| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 166/10 |
| Hearing date | 9 Nov 2009 |
| Determination date | 12 April 2010 |
| Member | J Wilson |
| Representation | L Yukich ; G Service |
| Location | Rotorua |
| Parties | Eastern Bay Independent Industrial Workers Union Inc & Ors v ABB Ltd |
| Other Parties | Beijerling & Ors |
| Summary | GOOD FAITH – Contract for services terminated by Carter Holt Harvey Ltd (“CHH”) – Staff informed of termination but told CHH intended for all staff to transition to new contract holder (“TSNZ”) – Offer of employment accepted and staff waived various entitlements – Staff claimed induced to enter agreement to waivers by undue influence – First applicant (“Union”) argued respondent breached duty of good faith – Union argued respondent failed to comply with Collective Employment Agreement (“CEA”) – Union argued staff redundant and entitled to redundancy compensation – Union claimed no consultation – Union argued waiver amounted to individual variation of terms and conditions of CEA – Respondent claimed disclosed all information about termination of contract – Respondent claimed employees invited to consider redeployment – Respondent claimed consulted with Union – Respondent claimed representation not raised at meeting and therefore reasonable for respondent to consider itself to be meeting with Union as done many times in past – Respondent claimed technical redundancy and therefore applicants not entitled to redundancy compensation – Authority found no evidence respondent knew contract would end and no conspiracy to make staff redundant after signing new agreements – Found no opportunity to carry out procedures set out in CEA because termination of contract thrust upon respondent – Found respondent made every effort to be open and communicative – Found respondent acted consistently with duty of good faith – Found business removed and new contract awarded to TSNZ – Found business transferred to TSNZ – Found employees accepted positions on exactly same terms as old positions including recognition of prior service – Found employees not entitled to redundancy compensation – Found applicants not entitled to pay in lieu of notice because circumstances not envisaged by respondent or covered by CEA – UNJUSTIFIED DISMISSAL – Redundancy – Found applicants redundant – Found redundancy genuine – Found respondent took immediate action to communicate situation to employees and genuinely believed were acting in best interests in recommending they accept positions offered with TSNZ – Dismissal justified |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(4);ERA Part 6(c);ERA Part 6A;ERA s103A |
| Cases Cited | AG v Grant [1998] 3 ERNZ 259 |
| Number of Pages | 22 |
| PDF File Link: | aa 166_10.pdf [pdf 62 KB] |