| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 494/10 |
| Hearing date | 28 Sep 2010 |
| Determination date | 26 November 2010 |
| Member | D King |
| Representation | D Feist ; P Tremewan |
| Location | Auckland |
| Parties | Absolum v The Fletcher Construction Company Ltd t/a Brian Ferry Civil |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed termination of employment was unjustified dismissal - Applicant claimed either fixed term agreement terminated prior to expiry of fixed term or if fixed term not genuine unjustifiably dismissed on grounds of redundancy - Employment agreement provided applicant to be working on dam upgrade with employment to continue until specified date or dam completed, whichever came first - Applicant started work with respondent on another project while respondent awaiting approval to work on dam - Applicant then began working on dam - With part of dam completed respondent reassessed staffing levels and concluded had sufficient resources without applicant - Applicant also on higher pay rate than other workers - Applicant transferred to bridge repair project - Applicant then told employment being terminated due to recession - Applicant given one weeks notice as required by employment agreement - Authority found where parties agreed employment to end in particular way, employer must have genuine reasons based on reasonable grounds for specifying that - Found in Julie Shortland v Alexander Construction Company Limited [2010] NZEMPC 41 Employment Court (“EC”) held that for grounds to be reasonable fact that employer had no other work in prospect had also to be included - In that case as agreement did not state no other work available EC held agreement did not comply with s66 Employment Relations Act 2000 (“ERA”) and had to be regarded as open ended - Found in present case was evident from history of employment that other work available - Found furthermore, evidence established dam project not completed at time applicant removed from work on dam and placed on work on bridge - Found agreement not genuine fixed term - Authority did not accept respondent’s submission applicant agreed to variations in specified projects - Found if periods of employment prior to and post work on dam were fixed term agreements did not comply with requirements of s66 ERA - Applicant claimed if was not fixed term agreement then dismissal unjustified and would appear to be for redundancy - Authority found no consultation with applicant before decision to terminate employment made - Authority not satisfied no further work available for applicant to do when employment terminated - Dismissal unjustified - Remedies - Applicant to be paid three month’s reimbursement of lost wages - Earnings from limited alternative employment applicant found to be deducted - Compensation of $4,000 appropriate - Hammer hand |
| Result | Application granted ; Reimbursement of lost wages ($13,000) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s66(2)(a);ERA s66(4)(b) |
| Cases Cited | Shortland v Alexander Construction Limited [2010] NZEMPC 41 |
| Number of Pages | 6 |
| PDF File Link: | aa 494_10.pdf [pdf 18 KB] |