| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 155/10 |
| Hearing date | 15 Apr 2010 |
| Determination date | 03 August 2010 |
| Member | P Cheyne |
| Representation | B Gillanders ; J Lovely |
| Location | Dunedin |
| Parties | McKendry v Jansen & Anor |
| Other Parties | Prouting |
| Summary | PRACTICE AND PROCEDURE - Identity of respondent - Respondents’ claimed company they were directors and shareholders of was applicant’s employer - Authority found written employment agreement identified employer as respondents personally - Found while respondents may have rearranged business so owned by company did not seek applicant’s agreement to change of employer - Found law did not permit party to employment agreement to assign agreement - Found proper respondent must be employer as identified in employment agreement - RAISING PERSONAL GRIEVANCE - Respondents claimed applicant did not adequately raise grievance within time - Applicant sent letter to respondents seeking mediation to resolve issues around dismissal for redundancy - Respondents claimed letter insufficient to effectively raise grievance as no remedies sought, no identification of problem, no proposal to resolve it, and no facts to support it - Authority found letter made respondents aware applicant dissatisfied with redundancy and sought resolution through mediation - Found no requirement to use words “personal grievance” or particularise remedies sought - Found applicant adequately asserted number of facts - Found grievance raised within time - UNJUSTIFIED DISMISSAL - Redundancy - In Statement of Problem applicant claimed constructive dismissal - Respondents claimed was no constructive dismissal and applicant should not be permitted to make out other type of grievance - Authority found substance of applicant’s complaint clear to respondents and Authority permitted to find grievance of type other than one alleged - Applicant called to meeting and told being given three weeks notice of redundancy - Applicant not told purpose of meeting or that could have support person - Applicant told to consider whether to work out notice or be paid and would be first person contacted if more work became available - Authority found respondents had genuine commercial need to reduce staff numbers and wage costs - Found employment agreement contained detailed redundancy provisions - Found respondents did not follow provisions - Found as no consultation applicant had no opportunity to give views on several aspects fundamental to respondents’ decision to dismiss applicant - Found resulted in applicant believing dismissed for pregnancy, work related accident and lack of training - Found respondents’ actions not those of fair and reasonable employer - Dismissed unjustified - Remedies - No contributory conduct - Applicant claimed lost remuneration - Authority found while need for a redundancy genuine if had proper consultation may not have been applicant who was made redundant - Found dismissal probably resulted in lost remuneration - Respondents to pay applicant from end of notice period to commencement of maternity leave - Applicant did not seek compensation for hurt and humiliation - REFERRAL OF QUESTION OF LAW - Applicant claimed compensation for loss of paid parental leave - Authority found was conflicting case law as to whether award for compensation could be made under s123(1)(c)(ii) Employment Relations Act 2000 (“ERA”) for loss of entitlement to paid parental leave caused by unjustified dismissal prior to commencement of leave - Found one case where Authority commented award could be made as damages for breach of contract on common law principles - Authority found merit in having definitive judgment from Employment Court about whether s123(1)(c)(i) or s123(1)(c)(ii) ERA permitted award of compensation to cover loss of paid parental leave - Pursuant to s177 ERA Authority referred question to Employment Court - Hairdresser |
| Result | Applications granted ; Reimbursement of lost wages (Quantum to be determined) ; Question referred to Employment Court ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Accident Compensation Act 2001 s317;ERA s114;ERA s123(1)(c);ERA s123(1)(c)(ii);ERA s177 |
| Cases Cited | Chiu v New Deli & Cafe Ltd and Anor unreported, A Dumbleton, 18 Nov 2008, AA 394/08;Creedy v Commissioner of Police [2006] 1 ERNZ 517;Huntley v Maataa Waka Ki Te Tau Ihu Trust unreported, H Doyle, 22 Sep 2008, CA 74B/08;Melrose v Weka Group Ltd t/a The Vulcan unreported, D King, 25 Nov 2008, AA 403/08 |
| Number of Pages | 13 |
| PDF File Link: | ca 155_10.pdf [pdf 83 KB] |