| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 274 |
| Hearing date | 20 Sep 2010 - 1 Nov 2010 (2 days) |
| Determination date | 27 June 2011 |
| Member | Y S Oldfield |
| Representation | M McFadden ; S Jameson |
| Location | Auckland |
| Parties | Gotoby v Allied Exteriors Ltd |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged and dismissed by respondent - Applicant did not work set hours each week but averaged full time hours - Respondent claimed business struggling and kept employees informed of situation as it developed - Applicant's hours reduced and eventually not offered anymore work - Respondent claimed offered applicant position in new structure on floating basis - Applicant denied receiving letter of offer - Respondent claimed terminated applicant's employment as applicant did not accept offer - Applicant claimed did not receive termination letter either - Applicant claimed treated as casual and terms and conditions of employment unilaterally changed which amounted to disadvantage - Applicant agreed attended meetings about restructuring - Applicant invited to provide feedback but did not do so - Authority found no dispute applicant's hours dropped - Respondent justified reduced hours by giving applicant as much work as possible and approved annual leave to make up shortfall - Found applicant only worked when work available and accustomed to taking annual leave when work unavailable - Found applicant not singled out unfairly - Found respondent's actions justified in circumstances - No disadvantage - Found applicant's recall not reliable - Found more likely than not that respondent did give applicant notice of termination - Respondent claimed dismissal justified on grounds of redundancy - Found applicant's terms of employment accommodated arrangement where annual leave could be taken to cover period where insufficient work available - Found no evidence of precedent for taking unpaid leave - Found applicant effectively dismissed from date when consultation ceased and no further work offered - Found respondent's approach to restructuring not arbitrary and adopted for genuine commercial reasons - Redundancy genuine - Found respondent did not adequately consult with applicant - Found respondent failed to explain why applicant personally let go and failed to give notice of termination at time applicant effectively dismissed - Found when applicant effectively dismissed proposal still work in progress - Found applicant entitled to further consultation as well as formal notification of outcome before work ceased - Dismissal unjustified - REMEDIES - Found reimbursement of reasonable notice period appropriate - Found redundancy genuine so no entitlement to reimbursement of lost wages - $5,000 compensation appropriate - Plasterer |
| Result | Application granted ; Reimbursement of notice period ($3,000) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_274.pdf [pdf 27 KB] |