| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 94 |
| Hearing date | 24 Nov 2010 - 17 Dec 2010 (2 days) |
| Determination date | 14 March 2011 |
| Member | V Campbell |
| Representation | C Murray ; K Thompson |
| Location | Auckland |
| Parties | Ballingall v Telco Asset Management Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed dismissal for redundancy unjustified - Applicant called to meeting with respondent’s Executive Director – Applicant given no notice as to what meeting about – Applicant told upcoming workload was such that employment no longer viable and would end in a month – Applicant given letter to that effect at meeting - Respondent claimed applicant aware was insufficient work and other staff being made redundant and so should have known employment at risk - Authority found applicant did not claim redundancy not genuine – Found evidence showed large decline in revenue for work undertaken by applicant over 18 month period - Authority satisfied redundancy was for genuine commercial reasons - Authority found respondent required to consult with applicant about redundancy - Found consultation required more than mere notification - Found respondent made decision to make applicant redundant and then notified applicant of decision – Found applicant not provided with information relevant to redundancy proposal - Found applicant not given opportunity to have input – Found general awareness of business not doing well or other redundancies not same as employee being specifically advised employer considering making their position redundant - Found respondent’s actions not those of fair and reasonable employer - Found respondent had obligation as fair and reasonable employer, to consider alternatives to making applicant redundant – However, found both positions that became available during applicant’s notice period were short term positions requiring skills and qualifications applicant did not possess – Dismissal unjustified - Remedies – No contributory conduct - As genuine redundancy reimbursement of lost wages could not be awarded - $5,000 compensation appropriate - UNJUSTIFIED DISADVANTAGE – Applicant claimed failure to consult caused unjustified disadvantage - Claimed would have remained in employment for two more weeks if proper consultation process followed – Authority found had proper consultation process been carried out would have begun earlier than date applicant dismissed – Found unlikely applicant would have been in employment for further two weeks claimed - No unjustified disadvantage - Project Manager |
| Result | Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($5,000) ; Application dismissed (Unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Communication & Energy Workers Union Inc v Telecom NZ Ltd [1993] 2 ERNZ 429;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;Mason v Health Waikato Ltd (in respect of the former Waikato Area Health Board) [1998] 1 ERNZ 84;McCosh v National Bank of New Zealand Ltd unreported, Colgan J, 13 Sep 2004, AC 49/04;NZ Storeworkers etc IUOW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_94.pdf [pdf 35 KB] |