| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 200/10 |
| Hearing date | 17 Feb 2010 - 18 Feb 2010 (2 days) |
| Determination date | 30 April 2010 |
| Member | M Urlich |
| Representation | S Hornsby-Geluk ; C Patterson |
| Location | Auckland |
| Parties | Whitten v Ogilvy New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Redundancy – Applicant offered directorship in exchange for relinquishing position title following new appointment to applicant’s role – Respondent announced appointment before applicant responded to offer – Applicant upset and shocked by announcement – Respondent stated applicant’s title merely title and appointment would have no impact on applicant’s position – Respondent withdrew directorship offer and raised performance concerns – Applicant argued withdrawal of directorship offer indicated offer not bona fide and performance concerns never previously raised – Respondent claimed withdrew offer following applicant’s reaction to appointment and could retain position title – Respondent suggested mediation to negotiate applicant’s exit from business – Applicant subsequently resigned – Applicant argued no option but to resign – Respondent argued did not want applicant to resign – Authority found respondent’s proposal amounted to notice of restructuring – Found reasonable for applicant to understand consultation process would be completed before public announcement made – Found applicant entitled to raise concerns about process – Found respondent unilaterally and unreasonably terminated consultation process by withdrawing offer – Found respondent undermined trust and confidence and backed applicant into corner – Found applicant’s resignation readily foreseeable – Dismissal unjustified – Found position no longer existed in new structure and redeployment options either directorship or reduced role – Found position redundant – REMEDIES – No contributory conduct – Applicant entitled to redundancy compensation of $128,615 as per employment agreement – $15,000 compensation appropriate due to applicant’s long service and seniority in business, highly public nature of departure and vindictive withdrawal of offer by respondent – Found distress compounded by respondent’s threat of High Court proceedings for malicious institution of civil proceedings – Found respondent attempted to prevent one of applicant’s witnesses from giving evidence – Found applicant took reasonable steps to mitigate losses and find alternative employment – Reimbursement of lost wages of $193,333 plus holiday pay at 8 percent appropriate – Reimbursement of lost benefits of $6,344 appropriate – Application for future lost wages and benefits declined because not impossible to obtain suitable alternative employment – PENALTY – Penalty claim declined due to robust findings already made – Senior advertising executive |
| Result | Application granted ; Redundancy compensation ($128,615.38) ; Compensation for humiliation etc ($15,000) ; Reimbursement for lost wages ($193,333 plus holiday pay at 8%) ; Reimbursement for lost benefits ($6,344.60) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers' IUOW [1994] ERNZ 168;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Master Builders' Assn (Auckland) Inc v Doe [1999] ERNZ 311 |
| Number of Pages | 12 |
| PDF File Link: | aa 200_10.pdf [pdf 35 KB] |