| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 177 |
| Hearing date | 21 Apr 2011 |
| Determination date | 02 May 2011 |
| Member | A Dumbleton |
| Representation | K Khan (in person) ; C Blake, S van der Wel |
| Location | Auckland |
| Parties | Khan v Oracle New Zealand Ltd |
| Summary | INJUNCTION – Interim Reinstatement – Applicant sought interim reinstatement following dismissal for redundancy – Authority found reinstatement no longer primary remedy – Found now reinstatement provided if practicable and reasonable – Found changes not retrospective but addressed to present – Applicant informed position disestablished with immediate effect – Applicant claimed redundancy not genuine – Applicant claimed victimised and retaliated against by colleagues – Applicant claimed redundancy used as way to get rid of applicant – Respondent claimed applicant’s position disestablished following major downturn in needs from clients and lack of work requiring applicant’s expertise and experience – Found only weakly arguable case applicant’s dismissal for redundancy not genuine – Found evidence indicated respondent’s decision to dismiss made with reference to position of employment applicant held and not with reference to applicant personally as individual – Found aspects of timing of consultation raised procedural questions with dismissal – Found procedural defects in genuine redundancy probably not sufficient to lead Authority to order reinstatement where dismissal unjustified – Found only weakly arguable case applicant would be reinstated if established dismissal unjustified – Found balance of convenience favoured not ordering interim reinstatement – Found reimbursement of lost wages and compensation would provide adequate remedies to applicant – Found overall justice favoured declining application for interim reinstatement – Found untested evidence indicated genuine redundancy – Found possible procedural defects with implementing redundancy – Found applicant made strong attacks against colleagues’ character and professional integrity – Found accusations indicated strong lack of trust and confidence – Application for interim reinstatement declined – Principal Consultant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s101(c);ERA s125;ERA s125(2);ERA s127 |
| Cases Cited | Cliff v Air New Zealand Ltd unreported, Colgan J, 25 Feb 2005, AC 6A/05;GN Hale & Sons Ltd v Wellington etc Caretakers etc IUOW [1990] 2 NZLR 1079;Lamb v Burnside Dairy Farms Ltd [2011] NZERA Christchurch 53 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_177.pdf [pdf 44 KB] |