| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 526/10 |
| Hearing date | 13 Aug 2010 |
| Determination date | 23 December 2010 |
| Member | R Arthur |
| Representation | L Campbell; A Maelzer |
| Location | Auckland |
| Parties | Bateman v Rush Security Services Ltd T/A Darien Rush Security |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Respondent proposed restructuring which would have resulted in disestablishment of applicant’s position – Respondent instead opted to pay for further training for applicant – Applicant never undertook training for various reasons - About three months later respondent established new senior role – Applicant claimed assigned tasks without same supervisory or technical responsibilities following appointment – Applicant indicated not satisfied with position and intended to resign in next few months – Applicant invited to attend meeting to discuss new proposed restructuring – Following meeting applicant informed redundant – Over four months later applicant saw what believed to be his position advertised – Applicant claimed dismissal for redundancy not for genuine commercial reasons – Authority found applicant had not established sufficient substance to allegation of engineered dismissal for predominantly ulterior motive - Found establishment of senior role was for sound commercial reasons – Found applicant lacked required experience and qualifications for role - Found job advertised not directly comparable to applicant’s former position – Accepted respondent’s evidence was work that had become available on particular contract – Found insufficient evidence two arguments applicant had with respondent’s managers provoked revival of earlier restructuring proposals primarily so respondent could dismiss applicant - Found were three factors of concern about genuineness of redundancy - Firstly, no compelling evidence for differences in reasons for two proposed restructures – Secondly, had respondent been more active in arranging training alternatives to dismissal may have been available - Thirdly, evidential paper trail demonstrating rationale for commercial reorganisation thin - However, found factors of concern insufficient to determine redundancy not for genuine reasons - Found respondent appeared to have given little thought to alternatives to redundancy - Found respondent failed to inform applicant about commercial situation before giving opportunity to comment on restructuring proposal - Respondent claimed did not provide information as applicant did not ask for it – Found respondent had good faith obligations to be active and communicative when consulting about potential redundancy - Found because applicant initially told would get shorter notice period than entitled to redundancy process became acrimonious and stressful – Found respondent could have eased distress by offering counselling and job search assistance – Found respondent’s treatment of applicant and how carried out redundancy less than what fair and reasonable employer would have done in all circumstances – Dismissal unjustified - Remedies - Found applicant suffered humiliation, loss of dignity, and injury to feelings - $6,000 compensation appropriate - ARREARS OF WAGES – Applicant’s work vehicle damaged – Respondent lodged insurance claim – Applicant asked to sign form authorising weekly deductions for excess on insurance claim – Applicant subsequently challenged deductions - Found respondent’s policy documents on vehicle damage only enforceable to extent consistent with terms of employment agreement (“IEA”) – Found IEA limited policies – Found insufficient evidence applicant responsible for damage - Found applicant signed deduction form on mistaken belief obliged to do so – Found deductions unlawful - Found applicant entitled to full refund of all amounts deducted from wages for insurance excess - PENALTY – Applicant sought penalty for breaches under Wages Protection Act 1983 and of good faith - Authority found other remedies sufficiently resolved matter and penalty in respect of breach of good faith would not further assist that purpose - Found deductions from wages proceeded on mistaken or misconceived basis but were not so knowingly wrong that penalty warranted – Application declined - Technical Supervisor |
| Result | Applications granted (Unjustified dismissal)(Arrears of wages) ; Compensation for humiliation etc ($6,000) ; Arrears of wages ($2,000) ; Application dismissed (Penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(c);ERA s4(4);ERA s103A;ERA s131;ERA s174;Wages protection Act 1983 |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601 ; [1998] 3 NZLR 276 ; (1998) 5 NZELC 95,767;Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533;Forest Park (NZ) Ltd v Adams [2000] 2 ERNZ 310;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;Nelson Aero Club Inc v Palmer unreported, Shaw J, 7 Mar 2000, WC 10A/00;Rolls v Wellington Gas Company Ltd [1998] 3 ERNZ 116;Savage v Unlimited Architecture Ltd [1999] 2 ERNZ 40;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 14 |
| PDF File Link: | aa 526_10.pdf [pdf 63 KB] |