| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 249/10 |
| Hearing date | 24 Sep 2009 |
| Determination date | 25 May 2010 |
| Member | D Asher |
| Representation | R Harrison ; E Butcher, S Kelly |
| Location | Auckland |
| Parties | Page v New Zealand Language Centres Ltd (formerly GEOS (New Zealand) Ltd) |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant (Mr Page – Employee) claimed unjustifiably disadvantaged when respondent’s (NZ Language Centre Ltd – Employer) owner made announcements at overseas regional conference removing regional director function from applicant’s role, changing applicant’s title, and announcing new manager (“M”) applicant to report to – Claimed announcements made without prior notification or consultation – Subsequently applicant warned if business not in profit situation then employment would be terminated – Applicant filed grievance in Authority - Respondent invited applicant to meeting to discuss performance issues and told actions could amount to serious misconduct resulting in summary dismissal – Subsequently applicant summarily dismissed by M – Authority found applicant’s demotion effected without any prior warning and not preceded by performance plan – Found no opportunity provided to applicant to address any legitimate concerns of respondent – Found complete absence of due process – Found loss of duties and stature amounted to significant, unilateral variation of employment agreement – Authority rejected respondent’s argument impact of demotion on applicant to be balanced by applicant’s accepted understanding of Japanese way of doing business – Found final warning given without prior warning or preceding performance plan – Found final warning unscrupulous exploitation of earlier unlawful demotion – Unjustified disadvantage established – UNJUSTIFIED DISMISSAL – Found summary dismissal seriously lacking in due process – Found while serious allegations put to applicant, was entirely unfair and unilateral process applied by respondent in reaching dismissal decision – Found respondent had no reason to treat non-availability of applicant’s representative as frivolous or obstructive – Dismissal unjustified – REMEDIES – No contributory conduct – Found 6 months reimbursement of lost wages appropriate – Found effect on applicant of unjustified treatment profound – Found applicant deeply distressed by inability to account to friends and family for considerable fall from professional grace – $21,000 compensation appropriate – Found applicant entitled to $8,076 loss of higher duties allowance – Found applicant entitled to $14,557 and $21,855 AUD in superannuation shortfalls by respondent – Found applicant entitled to $31,849 long service leave – Found applicant entitled to $14,556 incentive bonus payments – Authority accepted applicant owed $5,303 arrears of holiday pay – Found applicant owed $6,002 being salary underpayment – COUNTERCLAIM – Respondent claimed applicant breached good faith obligations and misused company credit card – Counterclaim rejected – Regional Director |
| Result | Applications granted (Disadvantage)(Dismissal) ; Reimbursement of lost wages (6 months) ; ($8,076)(Higher duties allowance) ; Recovery of monies ($14,556 NZD & $21,855 AUD)(Superannuation shortfalls) ; ($31,849)(Long service leave) ; Arrears of wages and holiday pay ($11,305) ; Compensation for humiliation etc ($21,000) ; Application dismissed (Counterclaim) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s128(3);ERA s130;ERA s130(2);ERA s130(4) |
| Cases Cited | Air New Zealand Ltd v V (2009) 9 NZELC 93,209 ; 6 NZELR 582;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659,660 |
| Number of Pages | 19 |
| PDF File Link: | aa 249_10.pdf [pdf 57 KB] |