| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 70 |
| Hearing date | 3 May 2011 |
| Determination date | 23 May 2011 |
| Member | H Doyle |
| Representation | P Churchman ; D Rhodes |
| Location | Invercargill |
| Parties | McDonald v Slinkskins Tannery Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant member of union and party to collective employment agreement (“CEA”) - Applicant twelfth out of 26 employees on seniority list – Respondent experiencing downturn in business due to global economic situation – Respondent seasonally laid off staff but was able to rehire several months later – However, situation did not improve and respondent had to consider redundancies – Applicant and other employees attended meeting where told were being made redundant – Applicant claimed no discussion about why had been selected - Some employees lower on seniority list were retained - Follow up meeting about redundancies did not resolve issues and ended prematurely when applicant and manager got into heated discussion - Applicant sent template letter stating was redundant – Approximately three months after dismissal respondent reemployed number of employees that had made redundant – Authority found evidence showed employees were telephoned by respondent about roles – Respondent claimed did not telephone applicant as had not filled out application form available at first redundancy meeting – Authority found evidence about application forms unconvincing to extent not satisfied were any application forms either mentioned or provided during meeting – Found therefore was not adequate reason why applicant not contacted and offered role - Found failure to contact applicant and offer employment when clear other employees offered employment cast considerable doubt that redundancy was genuine reason for applicant’s dismissal - Authority found was no real paper tail in what was quite significant restructuring and redundancy situation – Authority not satisfied applicant’s position genuinely redundant - Found applicant not provided with any information about proposed decision to make position redundant and did not have opportunity to comment on it – Found applicant simply told position redundant and given at most a weeks notice – Found applicant would have retained position if seniority had been followed in accordance with list - Found seniority list departed from on basis that employees were retained with skills and experience respondent needed but was no proper analysis undertaken with applicant about skills and experience had in particular area – Found respondent did not comply with requirement in CEA that if employees unable able to find work, respondent would make endeavours to obtain work on their behalf - Found process respondent followed not fair and reasonable - Dismissal unjustified – Remedies – No contributory conduct – Applicant initially sought reinstatement but then advised no longer seeking it as had found alternative employment – On day of investigation meeting applicant advised would like to be reinstated – Authority found reinstatement not practicable – No reinstatement ordered - Applicant obtained alternative employment six weeks after dismissal – However, employment required applicant to commute and be away from family during week – Applicant left employment to take fixed term contract at location closer to family – Found that broke chain of causation such that respondent to pay only six weeks reimbursement of lost wages – $3,600 reimbursement of lost wages of awarded – Applicant spoke of devastation when found out seniority list not complied with and not given adequate explanation as to why - $8,000 compensation appropriate – Sheep skin grader |
| Result | Application granted ; Reimbursement of lost wages ($3,600) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(c);ERA s103A;Interpretation Act 1999 s17;Interpretation Act 1999 s18;Interpretation Act 1999 s19 |
| Cases Cited | GN Hale & Sons Ltd v Wellington, Taranaki and Nelson Caretakers etc IUOW [1990] 2 NZILR 1079 ; [1991] 1 NZLR 151 ; (1990) 3 NZELC 97,985 ; (1990) ERNZ Sel Cas 843;Jinkinson v Oceana Gold (NZ) Ltd [2010] NZEMPC 102;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Christchurch_70.pdf [pdf 40 KB] |