| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 73 |
| Hearing date | 29 Sep 2010 - 23 Nov 2010 (4 days) |
| Determination date | 24 February 2011 |
| Member | R Larmer |
| Representation | T Drake ; M Lawlor, A Weal |
| Location | Auckland |
| Parties | Broughton v Microsoft New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed dismissal for redundancy was a sham – Claimed his role duplicated specifically so could be made redundant – Claimed consultation process was sham because outcome predetermined - Claimed redundancy carried out in procedurally unfair manner - Claimed should have been redeployed instead of being made redundant - Authority found substantial evidence applicant’s role and Corporate Affairs (“CA”) role significantly different – Found functions, objectives, responsibilities, and reporting lines different – Found each role had different focus, required entirely different skills, and sat within different part of respondent and respondent’s parent company - Found CA role not duplicate of applicant’s role - Found no evidence CA position created so applicant could be made redundant – Found respondent had no power to create or make hiring decision about CA role – Found respondent had no influence over person who could - Found evidence did not establish applicant doing substantive corporate affairs work as claimed - Found respondent had genuine commercial reasons for disestablishing applicant’s position - Found respondent followed fair and proper process before disestablishing position - Found applicant properly consulted – Found applicant told what was proposed and impact of proposal - Respondent provided applicant with relevant information, responded to issues raised, and gave reasonable opportunity to provide feedback before making final decision – Found consultation carried out at appropriate time - Found consultation process not a sham – Found disestablishment of position not predetermined - Found while respondent had obligation to consider alternatives to redundancy not obligated to automatically redeploy applicant to roles he applied for as were significantly different from current role – Found applicant given preference over other candidate’s and given support to assist him in applying for roles - Authority found respondent had good reasons for not redeploying applicant and followed fair and proper process in reaching that conclusion - Found respondent’s actions those of fair and reasonable employer – Dismissal justified - GOOD FAITH – Applicant claimed respondent breached duty of good faith because failed to provide information relevant to continuation of employment and opportunity to comment on it – Found respondent not obliged to provide information applicant sought - Authority accepted respondent’s evidence that one document applicant sought did not exist – Found failure to provide document that did not exist could not amount to breach of good faith - Found applicant provided with all relevant information - Applicant claimed respondent misled and deceived him over redeployment and provision of information - Found evidence did not support applicant’s allegation – Found respondent did not mislead or deceive applicant - BREACH OF CONTRACT – Applicant claimed respondent breached implied terms of employment agreement – Claimed failed to deal with him in good faith - Failed to treat him in fair and reasonable manner – Claimed respondent acted in manor likely to damage applicant’s reputation, cause injury to feelings, and damage relationship of trust and confidence – Authority found respondent did not breach employment agreement – Found respondent dealt with applicant in good faith and treated him fairly – Found respondent’s conduct towards applicant not inappropriate and could not have damaged applicant’s reputation or damaged parties’ relationship - Citizenship Lead |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1)(a);ERA s4(1)(b);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A |
| Cases Cited | na Nagara v McGrath, Chief Executive of the Auckland College of Education unreported, Travis J, 13 Sep 1996, AEC 56/96 |
| Number of Pages | 21 |
| PDF File Link: | 2011_NZERA_Auckland_73.pdf [pdf 54 KB] |