| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 132 |
| Hearing date | 10 Feb 2011 |
| Determination date | 05 April 2011 |
| Member | V Campbell |
| Representation | A Singh ; J Alcorn |
| Location | Auckland |
| Parties | Smith v Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s actions in not appointing him to vacancy disadvantaged him in his employment – Respondent claimed applicant never offered position and so did not accept it – Respondent used recruitment process whereby hiring manager (“HM”) responsible for recruitment selection and appointment process and Appointing Manager (“AM”) made final decision to appoint after receiving Recommendation to Appoint Report - Applicant employed by respondent as Corrections Officer at a prison – Applicant applied for position of Catering/Laundry Instructor at different prison - Applicant interviewed for position – Applicant informed was preferred candidate - Possible transfer date sought and obtained – HM learned applicant subject to final written warning for inappropriate interactions with prisoners four months earlier – After discussing matter with applicant HM satisfied applicant still preferred candidate – HM recommended applicant be appointed – AM concerned about warning and decided not to appoint applicant - Applicant informed would not be offered position – Applicant claimed process had been unprofessional, unethical and unfair – Claimed as had been told was successful applicant decision not to appoint amounted to dismissal – Authority found applicant never received offer of appointment to new position – Found applicant had never accepted an offer – Found respondent had notified applicant was preferred candidate and nothing more - Found in accordance with respondent’s policy and procedures, applicant was preferred applicant and his appointment was recommended to AM – Found AM, having received full briefing paper regarding respondent’s process and having considered recommendation, exercised authority not to appoint – No unjustified disadvantage – Authority also considered whether if appointment process was defective would give rise to personal grievance for unjustified disadvantage – Found applicant’s existing employment not affected to his disadvantage, rather, was prospect of securing new position that was affected – Found that did not come within definition of unjustified disadvantage – No unjustified dismissal - Corrections Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;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;Victoria University of Wellington v Haddon [1996] 1 ERNZ 139 ; [1996] 2 NZLR 409 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_132.pdf [pdf 37 KB] |