| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 191 |
| Hearing date | 20 Apr 2011 |
| Determination date | 09 May 2011 |
| Member | R Arthur |
| Representation | P Cole ; S Tee |
| Location | Auckland |
| Parties | Wareham v Rooke t/a Casey Panelbeaters and Anor |
| Other Parties | Sigma Holdings Ltd t/a Casey Panelbeaters |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicant claimed unaware employer was director and shareholder of registered company – Applicant claimed not provided with written employment agreement identifying company as employer – Employment agreement made no reference to second respondent (“S”) – Applicant acknowledged learnt of existence of S after applicant employed as company name on payslips – Authority found as S not undisclosed principal, applicant not entitled to proceed against first respondent in personal capacity – Found S was applicant’s employer and appropriate respondent - UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed redundancy decision not based on genuine business reasons, instead result of applicant insisting on paid sick leave for non-work injury – S claimed position disestablished as insufficient work and had discussed decision with applicant over several months – S claimed redundancy only commercially viable option – Parties had number of discussions about lack of work available – After applicant informed S that paid leave for non-work injury at employer’s discretion, S initially said would not pay for leave – S later agreed to pay sick leave – Both parties agreed S also told applicant position redundant because of economic downturn – Authority found applicant did not establish on balance of probabilities redundancy decision made predominantly for reasons other than genuine commercial reasons – Authority noted S’s attempts to generate further business unsuccessful – Applicant advised of redundancy and issued with termination letter on same day – Applicant claimed would have taken up apprenticeship and prepared to do range of duties for S – Authority found applicant not given fair notice or enough time to suggest alternatives to S – Noted applicant not offered any job placement assistance - Authority found applicant disadvantaged by how S made and implemented redundancy decision - Found as redundancy made for genuine business reasons, applicant did not have personal grievance for loss of job itself – REMEDIES – No contributory conduct - Applicant claimed distressed as had to make alternative arrangements in very limited period – S submitted distress inevitable result of redundancy based on genuine commercial reasons – Found compensation limited to distress arising from suddenness of decision - No award for lost wages as redundancy decision made for genuine business reasons – $2,500 compensation appropriate - Tow Truck Driver |
| Result | Application partially granted ; Compensation for humiliation etc ($2,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103;ERA s124;ERA s174 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_191.pdf [pdf 22 KB] |