| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 282/10 |
| Hearing date | 26 Apr 2010 - 27 Apr 2010 (2 days) |
| Determination date | 14 June 2010 |
| Member | D King |
| Representation | K Beck, K Jones ; P Kiely, D Erickson |
| Location | Auckland |
| Parties | Eastern Bay Independent Industrial Workers Union Inc & Ors v Carter Holt Harvey |
| Other Parties | Moengaroa, Ohlson, Mokomoko, Tait |
| Summary | BARGAINING – UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Second applicants’ claimed unjustifiably dismissed on grounds of redundancy – Claimed secondly, respondent breached agreement to resume bargaining on employment protection provision (“EPP”) and to conduct restructuring in abeyance upon receiving Employment Court (“EC”) decision – Claimed thirdly, respondent breached terms of collective employment agreement (“CEA”) – Claimed fourthly, unjustifiably disadvantaged by suspension, not being permitted to work, and no proper notice of termination – Claimed fifthly respondent breached good faith obligations – Respondent argued second applicants justifiably dismissed as result of genuine commercial decision to outsource work to company (“C”) – Respondent communicated decision to first applicant that would proceed with fully outsourcing second applicants’ functions – Subsequently, EC held existing EPP not compliant with ERA – Respondent proceeded with implementing restructuring – Respondent instructed second applicants’ manager to inform second applicants to attend meeting that day but to not state what meeting about – Two of second applicants attended meeting, others on rostered days off and leave – Authority found respondent made no attempt to contact first applicant’s advocate as required under CEA – Second applicants’ request to have union representative present refused – Respondent argued thought second applicants sought representative present because wanted to continue restructuring consultation – Found respondent should have ensured second applicants represented and first applicant notified prior to notice being given – Second applicants informed positions disestablished – Authority found respondent breached EPP – Found no process about contracting out to extent affected second applicants or to determine what matters relating to employment would be negotiated between C and respondent – Found no consultation regarding implementation of restructuring – Found respondent breached agreement that parties would negotiate compliant EPP if EC found current one non-compliant – Found failure to abide by agreement constituted unjustified disadvantage – Found failure to allow second applicants to work out notice period constituted unjustified disadvantage – Found respondent failed to ensure affected employees present went to justifiability of dismissal – Found respondent failed to discuss redeployment as stated in CEA – Found respondent’s instruction that no information be provided regarding content of meeting breached obligation of good faith – Found process so severely flawed dismissals unjustified – REMEDIES – Parties left to resolve arrears of lost wages – Found second applicants long serving employees who were dismissed in a precipitate and distressing manner without opportunity for representation – $12,000 compensation for each appropriate – PENALTY – Authority found act of proceeding with implementation of restructuring not designed to undermine employment relationship – Found respondent’s actions serious, and sustained, but not deliberate – Found respondent genuinely of view EC decision enabled it to proceed with restructuring – No penalties ordered – Saw Doctors |
| Result | Applications granted (Dismissal)(Disadvantage) ; Application dismissed (Penalty) ; Arrears of wages (Quantum to be determined) ; Compensation for humiliation etc ($12,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s136(2);ERA s134(1);ERA s4A;ERA Part 6A;ERA s4(4)(e);ERA s4(4)(d);ERA s4(1A)(b) |
| Cases Cited | Eastern Bay Independent Industrial Workers Union Inc & Ors v Carter Holt Harvey Ltd unreported, Colgan CJ, 27 May 2009 (AC 22/09);Eastern Bay Independent Industrial Workers Union Inc and Anor v Carter Holt Harvey Ltd [2009] ERNZ 334;The New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc & Ors v Carter Holt Harvey [2002] 1 ERNZ 597;Atwill v Tanners Timber World Ltd [1994] 1 ERNZ 321;GWD Russells (Gore) Ltd v Muir [1993] 2 ERNZ 332;Xu v McIntosh [2004] 2 ERNZ 448;Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2006] ERNZ 449 |
| Number of Pages | 22 |
| PDF File Link: | aa 282_10.pdf [pdf 62 KB] |