| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 169/10 |
| Hearing date | 9 Dec 2009 |
| Determination date | 13 April 2010 |
| Member | R Arthur |
| Representation | S Lomas ; A Swan |
| Location | Auckland |
| Parties | Tree v Jansen Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant’s position disestablished – Arrangements made for two weeks notice and applicant provided with details about possibility of working as independent contractor on commission-only basis – Applicant told customers would continue to be involved with respondent on that basis – Arrangements never finalised – Respondent claimed pressing business reasons for redundancy – Applicant claimed work still remained because offered position as independent contractor – Applicant argued choice for redundancy motivated by ulterior motives – Application claimed motives unwarranted concerns about work ethic and performance and misplaced doubts about responsibility for agency sale failure – Authority found reduction of respondent’s staff levels by half demonstrated genuine commercial imperatives not peculiar to applicant’s position – Found prospect of continuing work as independent contractor did not negate genuineness of redundancy – Found applicant failed to reach evidential requirement of ulterior motive – Found business needs of respondent predominate motive for redundancy – Found applicant generally aware of prospect of redundancy – Found general awareness of redundancy did not meet statutory requirement for consultation – Found consultation did not occur – Authority rejected respondent’s argument flaws in redundancy procedure superseded by offer of independent contractor position – Dismissal unjustified – REMEDIES – No contributory conduct – Found subsequent conduct of respondent involving comments about applicant aggravated distress of applicant – $8,000 compensation appropriate – ARREARS OF COMMISSION AND HOLIDAY PAY – Respondent claimed entitled to keep final commission payment and applicant received more holiday pay than due – Found respondent not entitled to withhold commission payment on basis overpaid holiday pay – Found commission payment due and owing – PENALTY – Applicant sought penalty for failure to provide employment agreement – Found respondent failed to provide written employment agreement – Found respondent liable for breach – Penalty awarded – COUNTERCLAIM – GOOD FAITH – Respondent claimed breach of good faith, fidelity and confidentiality over attempts to sell agency held by respondent for sale of brand of cymbals – Applicant denied providing confidential information – Found respondent failed to establish necessary evidential level loss caused by breaches of duty by applicant – Found no breach of good faith – Found applicant not liable for loss of sale of agency – Sales representative |
| Result | Application granted ; Compensation for humiliation etc ($8,000) ; Arrears of commission payments ($333.82) ; Penalty ($500)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(4);ERA s4(1A)(c);ERA s63A(2);ERA s103A;ERA s124;ERA s131;ERA s133(2);ERA s135;Holidays Act 2003;Wages Protection Act 1983 |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] ERNZ 601;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 and Cleaners Union [1990] 2 NZILR 1079;Nelson Aero Club Inc v Palmer unreported, Shaw J, 7 March 2000, WC 10A/00;Russell Harris v Charter Trucks Limited unreported, Couch J, 11 Sept 2007, CC 16/07;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40;Simpsons Farms Limited v Aberhart [2006] ERNZ 825 |
| Number of Pages | 14 |
| PDF File Link: | aa 169_10.pdf [pdf 41 KB] |