| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Christchurch 63 |
| Hearing date | 30 Mar 2011 |
| Determination date | 12 May 2011 |
| Member | H Doyle |
| Representation | W Clark ; B Dorking |
| Location | Dunedin |
| Parties | Kilgour v Queen's High School Board of Trustees |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant worked as visual technician for respondent for approximately 25 years - Applicant previously worked 27.5 hours per week – Respondent conducted review of support staff and proposed reducing applicant’s hours to 5.5 per week – Applicant signed letter agreeing to change but then told school principal unhappy with reduction in hours and no longer wished to agree to change – Following two meetings applicant gave letter to respondent rescinding acceptance of reduced hours and stating reduction in hours meant had no job - Applicant did not return to school at start of new school year – Applicant subsequently joined union - Applicant did not turn mind to employment conditions and claimed had little contact with other staff about such issues – Applicant’s last known employment agreement at time of review was individual employment agreement offered in 2004 (“2004 IEA”) – Under 2004 IEA applicant’s agreement to change in hours required - Respondent believed applicant’s position covered by relevant collective agreement where agreement to change in hours not required – Applicant claimed caused unjustified disadvantage by process leading to reduced hours – Issue as to whether applicant had entitlement to redundancy compensation in accordance with 2004 IEA – Claimed unjustifiably disadvantaged in negotiating terms and conditions with respondent as not offered comparable terms to those offered in collective agreement, resulting in underpayment – Claimed failure to carry out 12-monthly remuneration reviews as specified 2004 IEA caused unjustified disadvantage - Respondent alleged liability to make redundancy payment ended when applicant joined union and was covered by collective agreement - Authority found evidence suggested applicant’s conditions remained those of expired collective contract until 2004 – Found although no evidence respondent signed 2004 IEA applicant had received change in hours and pay increase in accordance with it – Found no evidence respondent had obtained concurrence of State Services Commissioner to 2004 IEA under s75(2) State Sector Act 1988 but that did not invalidate agreement as between parties – Found when respondent reviewed hours applicant party to 2004 IEA – Found applicant’s letter effectively resignation – Found respondent failed to consider whether significant reduction in hours indicated applicant’s position had become surplus – Found applicant unjustifiably disadvantaged by respondent’s failure to comply with provisions of 2004 IEA – Found applicant’s joining union had no effect on entitlement – Found applicant’s position genuinely surplus to requirements and applicant entitled to redundancy - Found through lack of knowledge of grading system applicant lost opportunity to argue that position should have been treated as equivalent to higher grade in collective contract – However, found had not produced sufficient evidence that it would have done so – Found applicant had lost realistic chance of being paid allowance – Found grievance concerning failure to comply with wage review not raised in time - Remedies – Found applicant’s position genuinely surplus to requirements and applicant entitled to redundancy – Parties to determine quantum – Interest awarded - Applicant entitled to payment of $2,009 allowance - Found applicant suffered humiliation and loss of dignity over poor handling of review and loss of opportunities to negotiate - $7,000 compensation appropriate - COUNTERCLAIM - Respondent counterclaimed for payments made to applicant at beginning of new school year when applicant not working – Authority found amount paid to applicant in wages should be offset against redundancy compensation - Audio visual technician |
| Result | Application partially granted ; Counterclaim granted ; Compensation for humiliation etc ($7,000) ; Redundancy compensation (Quantum to be determined) ; Interest (5.5%) ; Arrears of wages ($2009.70)(Allowance) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Electrical Registration Act 1979;ERA s63A;ERA s68;ERA s103A;Judicature Act 1908 s87(3);State Sector Act 1988 s73;State Sector Act 1988 s75;State Sector Act 1988 s75(1);State Sector Act 1988 s75(2);State Sector Act 1988 s75(3) |
| Cases Cited | The Red Beach School Board of Trustees & Anor v The New Zealand Education Institute (INC) unreported, Couch J, 20 Mar 2007, AC 13/07 |
| Number of Pages | 21 |
| PDF File Link: | 2011_NZERA_Christchurch_63.pdf [pdf 64 KB] |