| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 236/10 |
| Hearing date | 20 Aug 2010 |
| Determination date | 21 December 2010 |
| Member | H Doyle |
| Representation | T Devlin ; J Shingleton |
| Location | Christchurch |
| Parties | Dowds v Martin Hydraulics Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed redundancy not genuine and procedurally unfair - Respondent made decision to make one sales position redundant – Applicant given letter advising of proposed plan and setting out selection criteria – Applicant invited to consultation meeting – Dispute as to exact nature of meeting and what was discussed – Authority found likely parties did discuss possibility of redundancy – Applicant claimed not all selection criteria discussed and focus seemed to be on applicant’s age – Authority found likely was misunderstanding about why applicant supplied list of particular clients – Applicant heard nothing further about restructuring until handed letter advising of redundancy nearly month later - Applicant believed selected for redundancy on basis of age - Authority not satisfied on evidence applicant selected for redundancy on basis of age - Authority found redundancy genuine – Found decision to reduce sales team by one made for genuine commercial reasons – Found redundancy process unfair - Found consultation inadequate – Found decision to reduce sales team by one already made and applicant given no real opportunity to respond to proposal – Found first and only meeting was to discuss selection criteria for redundancy - Found that did not satisfy respondent’s good faith obligations – Found consultation involved putting proposal that was not yet finally decided on to employee and listening to what they had to say and then considering response before deciding what to do – Authority found selection process also unfair – Found was no conversation to clarify why applicant put particular clients’ name forward – Found was little discussion of two of selection criteria – Found respondent simply handed applicant redundancy letter without explanation – Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies – No contributory conduct - Reimbursement of lost wages generally not awarded where redundancy genuine – Found unable to conclude if process properly undertaken applicant would have retained job – However, fair and reasonable process would likely have taken longer – Reimbursement of one months lost wages awarded to reflect that – Found evidence of hurt and humiliation relatively limited – However, applicant unclear about reasons selected for redundancy and simply handed redundancy letter – Attempts to discuss redundancy not fruitful and no other assistance offered - $8,000 compensation appropriate - ARREARS OF WAGES - Applicant claimed not paid full and proper notice – Found applicant incorrectly paid for notice period – Found applicant owed one days pay in relation to notice period - No evidence to support applicant’s claim not paid correctly for sick leave – Application dismissed - Applicant raised issue of entitlement to overtime in statement of evidence – Authority found inappropriate to raise claim for first time in statement of evidence – Authority did not investigate matter as respondent unprepared for claim – Applicant to lodge further application if wished to pursue claim - Senior Applications Engineer |
| Result | Applications granted (Unjustified dismissal)(Arrears of wages – notice period) ; Arrears of wages (One day)(Notice period) ; Reimbursement of lost wages (One month) ; Compensation for humiliation etc ($8,000) ; Application dismissed (Arrears of wages – sick leave) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A |
| Cases Cited | Cammish v Parliamentary Service [1996] 1 ERNZ 404;Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533;GN Hale & Sons Ltd v Wellington, Taranaki and Nelson Caretakers etc IUOW [1990] 2 NZILR 1079 ; [1991] 1 NZLR 151 ; (1990) 3 NZELC 97,985 ; (1990) ERNZ Sel Cas 843;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 16 |
| PDF File Link: | ca 236_10.pdf [pdf 58 KB] |