| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 424/10 |
| Hearing date | 29 Jun 2010 |
| Determination date | 29 September 2010 |
| Member | A Dumbleton |
| Representation | M Ryan ; G Stone |
| Location | Auckland |
| Parties | Butterworth v TBA Communications Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Parties acknowledged applicant part time – However, when applicant began working at least 25 hours per week parties discussed need for respondent to have full time position – Subsequently respondent purported to disestablish applicant’s part time position – Applicant provided one months notice and advised full time position would be advertised – Applicant claimed redundancy not genuine and fair process not followed – Authority previously declined application for interim reinstatement – Authority noted employee did not have right to continued employment if greater efficiency goal of employer – Found restructuring driven by commercial imperatives – Found decision not based on anything such as applicant’s conduct or performance personal to applicant as holder of position at time – Found sufficient grounds to justify as decision available to fair and reasonable employer – Found applicant given reasonable opportunity to consider proposal and respond during further discussions which occurred – Found no dispute respondent encouraged applicant to apply for position by indicating she had strong chance of being successful – Found respondent reasonably believed applicant had not given unqualified acceptance to work full time hours, because applicant wished to retain “flexibility” – Found applicant was unjustifiably disadvantaged by respondent’s action of not granting request for copy of employment agreement intended to vary part time position held – Found bargaining which took place between parties carried out in breach of s63A(2) Employment Relations Act 2000 and therefore way employer acted not justifiable – Found failure to commit intended variation of applicant’s individual employment agreement to writing and provide copy led to situation of uncertainty between parties as to agreement – Found situation which developed cost applicant opportunity to try and negotiate precisely undefined “flexibility” applicant had sought as well as negotiate over salary for full time position – Found grievance not one of unjustified dismissal, however, failure amounted to unjustified disadvantage – Remedies – No contributory conduct – Found withholding consent to redeployment through variation of EA not matter of fault or blame – Question to what extent loss and harm caused by justified redundancy dismissal and reaction to pending loss of employment – Found applicant lost wages caused by genuine redundancy – No order for reimbursement of lost wages – Found $1,000 compensation appropriate for distress caused to applicant – Mac Operator |
| Result | Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s62A(2);ERA s63A(2);ERA s63A(1)(e);ERA s65;ERA s65(2)(a) |
| Cases Cited | Butterworth v TBA Communications Ltd unreported, A Dumbleton, 23 Jun 2009, AA 201/09;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825;Telecom New Zealand Limited v Nutter [2004] 1 ERNZ 315;Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 11 |
| PDF File Link: | aa 424_10.pdf [pdf 37 KB] |