| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 204/10 |
| Hearing date | 3 Dec 2010 |
| Determination date | 21 December 2010 |
| Member | D Asher |
| Representation | P Cranney ; K Soich |
| Location | Wellington |
| Parties | Brooker and Ors v Care Park New Zealand Ltd |
| Summary | DISPUTE – Interpretation of collective employment agreement (“CEA”) - Respondent provided car parking and car valet services to Air New Zealand (“ANZ”) pursuant to agreement – Agreement provided ANZ would reimburse respondent all staff costs associated with provision of services – Applicants employed by respondent - Parties had CEA – ANZ terminated agreement with respondent – Respondent advised applicants would be made redundant - Respondent believed would recover costs of redundancy compensation from ANZ – As consequence respondent informed applicants would be paid redundancy compensation – ANZ refused to compensate respondent for costs of redundancy compensation – Respondent then declined to pay redundancy compensation to applicants - Applicants sought payment of redundancy compensation - Applicants claimed respondent in breach clause 17.1(a) CEA - Clause 17.1(a) stated “where for commercial reason [respondent] makes the decision to restructure that creates a surplus of staff and no other suitable work can be found elsewhere in [respondent], then redundancy applies” - Applicants claimed redundancies were result of “commercial reason” initiated by respondent and therefore redundancy compensation payable - Respondent claimed clause 17.1(a) did not apply – Claimed situation covered by clause 17.1(b) and so redundancy compensation not payable – Clause 17.1(b) stated “where through an action out of the control of [respondent] creates a surplus of staff and no other suitable work can be found elsewhere in [respondent], then no redundancy applies” – Claimed ANZ terminating agreement was action out of its control - Authority found meaning of clauses in CEA unambiguous and clearly applied to situation – Found decision to terminate agreement clearly at ANZ’s initiative - Found redundancies not initiated by respondent and not of its making – Found no evidence, but for ANZ’s actions, respondent would not have continued applicants’ employment - Therefore could not be said for commercial reason respondent made decision to restructure that created staff surplus and no other work available – Therefore, found clause 17.1(a) did not apply - Found clause 17.1(b) applied – Found no redundancy compensation payable - Applicant also claimed respondent bound by promise to pay redundancy compensation; consideration being applicants remained in respondent’s employ throughout notice period - Respondent claimed not bound by promise - Authority did not accept respondent required applicants to remain in employ for duration of notice period so might be eligible for redundancy compensation – Found therefore no consideration as claimed by applicants – Found respondent’s optimism about receiving redundancy compensation from ANZ did not create in law a legal entitlement for applicants to be paid redundancy compensation - Found no evidence respondent deliberately misled applicants in respect of expectation would receive redundancy compensation – RAISING PERSONAL GRIEVANCE – Applicants’ claimed dismissal were unjustified – Found no evidence of applicants’ filing notice of personal grievance until lodging statement of problem – Found personal grievance raised outside 90 day period and when was raised did not provide sufficient detail - Found applicants not claiming exceptional circumstances in order to raise grievance out of time – Found respondent did not consent to grievances being raised out of time – Application dismissed |
| Result | Questions answered in favour of respondent ; Application dismissed (Raising personal grievance) ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s114 |
| Number of Pages | 7 |
| PDF File Link: | wa 204_10.pdf [pdf 34 KB] |