| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 412/10 |
| Hearing date | 17 Aug 2010 |
| Determination date | 13 September 2010 |
| Member | R Larmer |
| Representation | J Loveday (in person) ; J Houston |
| Location | Auckland |
| Parties | Loveday v CNC Machining Co Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed selection for redundancy predetermined and no proper procedure followed – Applicant and boss (H) had 25 year friendship – Respondent suffered significant business downturn and reluctantly embarked on restructuring process – Applicant accepted respondent in financial difficulty and redundancies necessary – Authority found redundancy genuine – Applicant claimed respondent should have engaged informally about redundancy because of longstanding friendship – Found no legal requirement to engage informally – Applicant only person in role – Found selection criteria not applicable – Respondent claimed made applicant redundant because duties could be reallocated to other staff and applicant one of highest paid staff – Found reasons for selection reasonable and credible – Found respondent entitled to select applicant’s position for redundancy – Applicant claimed did not get all information about proposal at outset of process – Found respondent shared more commercially sensitive and confidential information with applicant at far earlier stage than many employers would have – Found respondent provided applicant with all relevant information and applicant given opportunity to comment before final decision made – Respondent sought to transfer business mobile phone into applicant’s own name – Found respondent’s actions regarding mobile phone did not indicate predetermination of redundancy – Found instruction to staff to take annual leave did not indicate future redundancies predetermined – Found cancellation of training not evidence of predetermination of redundancy – Found fair process followed and no predetermination – Dismissal justified – UNJUSTIFIED DISADVANTAGE – Applicant claimed disadvantaged as treated differently from other staff because directed to take more annual leave – Respondent claimed gave applicant 14 days notice of requirement to take additional annual leave and given option of phoning in whilst on leave to give applicant chance to return early if there was work – Respondent claimed all staff directed to take annual leave – Found applicant given insufficient notice of requirement to take annual leave – Respondent claimed applicant given option of accepting or declining work while on leave – Applicant claimed interrupted holiday – Found H endeavoured to accommodate applicant’s reluctance to take leave by giving opportunity to work during annual leave – Found no disadvantage – Found applicant not treated differently from other staff as all staff directed to take annual leave – Found applicant disadvantaged by insufficient notice to take leave – REMEDIES – Found applicant gave minimal evidence of inconvenience and injury to feelings as result of direction to take leave on insufficient notice – Found applicant received two paid days leave – $350 compensation appropriate – Quality Controller |
| Result | Application dismissed (unjustified dismissal) ; Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($350) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103(1)(b);Holidays Act 2003 s18;Holidays Act 2003 s18(3);Holidays Act s19(1);Holidays Act 2003 s19(2) |
| Cases Cited | Simpson Farms v Aberhart [2006] ERNZ 825 |
| Number of Pages | 16 |
| PDF File Link: | aa 412_10.pdf [pdf 42 KB] |