| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 56 |
| Hearing date | 15 Apr 2011 |
| Determination date | 27 April 2011 |
| Member | M B Loftus |
| Representation | J Guthrie ; C Saunders |
| Location | Dunedin |
| Parties | Newton v Sandblasting Specialist Otago Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed dismissed twice by respondent – Firstly through redundancy then secondly when rehired and then dismissed again – Applicant advised by co-worker (“A”) that respondent’s Managing Director (“X”) wanted to meet him in his office – Applicant given memorandum informing him respondent’s business to close, applicant to be made redundant, and applicant invited to meeting to discuss matter – Applicant then given one week’s notice – Applicant claimed business did not close rather continued to operate with A as employee – Authority noted Employment Relations Act 2000 recently amended to change test of justification in s103A – However, dismissal occurred prior to change so as Interpretation Act 1999 stated enactments did not have retrospective effect previous test for justification to be used - Authority found based on evidence provided respondent’s business did close – Found applicant’s contention did not close no more than suspicion, found X’s explanation plausible and unchallenged and supported by unchallenged evidence of another employee and respondent’s financial records showed no activity after certain date - Authority found based on evidence provided respondent’s decision to close business substantively justified – Found respondent had made loss for fourteen months and X was supporting business from own funds – Found was genuine redundancy for commercial reasons – However, Authority found consultation process deficient – Found at point decision made to close business and make applicant redundant had been no discussion, consultation, and therefore no consideration of any alternative that consultation may have elicited – Found failure to consult was procedural deficiency making redundancy unjustified – Dismissal unjustified - Authority rejected applicant’s claim offered and accepted redeployment after made redundant and then told redeployment not possible – Found parties had discussion about possible work dependant upon successful tender but was no firm commitment – Applicant’s claim dismissed second time rejected - Remedies – No contributory conduct - Authority found as was genuine redundancy and business closed applicant’s employment would likely have terminated even with proper consultation – Found in those circumstances applicant not entitled to reimbursement of lost wages – Found applicant clearly upset by redundancy – However, found evidence of distress centred round need to relocate to another town to gain alternative employment – Found that situation would have arisen even with consultation - $2,000 compensation appropriate - Foreman |
| Result | Application granted ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| 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;Wang v Hamilton Multicultural Services Trust [2010] ERNZ 468 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Christchurch_56.pdf [pdf 30 KB] |