| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 162/10 |
| Hearing date | 24 Feb 2010 - 17 May 2010 (2 days) |
| Determination date | 17 August 2010 |
| Member | J Crichton |
| Representation | D Beck ; M Fogarty |
| Location | Christchurch |
| Parties | Gardiner v CWF Hamilton & Company Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Good faith – Applicant claimed redundancy substantively and procedurally unjustified – Respondent restructured business due to recession – Restructure proposal identified disestablishment of two positions including applicant’s – Initial consultation meeting held with affected employees – Job descriptions for new positions provided – Submissions from affected employees invited – Respondent advised affected employees would provide information as redundancy process progressed – Meeting held with applicant’s union – Union advised respondent that affected employees uncomfortable with respondent’s head of department (“L”) on selection panel due to risk of bias – Union advised affected employees respondent’s manager (“S”) already conducted selection assessments for redundancy and redeployment – Applicant claimed S confirmed ranking for selection based on “best person to worst person” – S argued did not know would be on selection panel until alleged by union - Argued selection process and criteria not yet finalised at time of meeting – Respondent emailed union making clear allegation factually wrong given selection criteria not yet established – Selection panel subsequently brought together with L removed and S and another member sitting at union’s request – Panel made selection without personnel files on basis may prejudice candidates who previously raised employment relationship problems – Respondent argued no affected employees sought interviews but would have conducted interviews upon request – Selection made on quantitative and qualitative assessment – Applicant unsuccessful candidate for redeployment – Personal grievance raised – Authority found disestablishment of position substantively justified as reduced market demand made it necessary to restructure – Found redundancy process procedurally justified – Found respondent engaged in extensive consultations with affected employees and union and changed panel members upon union’s request – Found respondent not required to accept affected employees’ submission regarding restructure as it would subvert respondent’s autonomy to make business decisions – Found clear evidence no selection assessment made and criteria not finalised at time meeting held – Found panel’s decision and application of criteria robust – Accepted respondent would have conducted interviews if applicant requested – Found not appropriate for Authority to scrutinise every aspect of selection process – Found respondent provided affected employees with information about selection process – Applicant claimed principle “last on first off, all things being equal” not applied – Found respondent entitled to view all things not equal – Found applicant’s commencement of employment post-dated commencement of service of successful candidate – Applicant Claimed L exercised “malign influence” to ensure applicant’s position terminated – Claimed prejudiced by L during first incident where respondent expressed concern about performance - Claimed in second incident, applicant replaced by L to complete project – L’s evidence preferred - Found in both alleged incidents respondent exercised proper management decision – Found insufficient evidence to establish L biased against applicant – Found alternatively, evidence L influenced redundancy process weak given L removed from selection panel – Found dismissal for redundancy justified – Manufacturing Engineer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1);ERA s4(1A);ERA s103A |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;GN Hale & Son Ltd v Wellington etc Caretakers etc IUOW [1990] 1 NZLR 151;Jinkinson v Oceania Gold (NZ) Ltd [2010] NZEMPC 102;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825;Trotter v Telecom Corporation of NZ Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 17 |
| PDF File Link: | ca 162_10.pdf [pdf 58 KB] |