| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 116 |
| Hearing date | 5 Apr 2011 |
| Determination date | 06 July 2011 |
| Member | G J Wood |
| Representation | B Osborne ; K Stretton |
| Location | Palmerston North |
| Parties | Mills v Boss NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant resigned of own accord to start home kill business – Authority found evidence provided by applicant and Director of respondent (“D”) not credible – Found applicant genuine but suffered severe memory problems – Found applicant only made serious complaints about position when noticed job advertised after leaving – Found D made inconsistent previous statements to Ministry of Agriculture and Forestry (“MAF”) investigator – D admitted exaggerated situation with applicant to evade responsibility with MAF investigator and was deceitful over applicant’s pay rise – Applicant claimed support person at restructuring meetings beholden to respondent due to subsequently receiving work – Found applicant’s support person’s evidence reliable – Found applicant not as productive as might have been and this became of great concern to D – Respondent informed applicant of organic and down cow initiatives - Respondent informed applicant of intention to hire additional employee - D told applicant productivity unacceptable and production to be supervised by manager from one of D’s other companies – Applicant claimed low productivity result of not enough help and inadequate machinery – Applicant made no objection to having to report to new manager – Applicant asked D about changed job description – D told applicant expected to perform same tasks but should concentrate on offsite slaughter – Applicant started to set up own home kill business when first became aware of advertisement for new employee – D decided not feasible to continue to employee two staff due to poor season – D set up meeting to discuss financial issues – Applicant aware of redundancy possibility – Respondent identified options as either closing plant or reducing staff numbers from two to one – Applicant’s support person suggested applicant do contract killing for respondent and own home kill work – D set out selection criteria if redundancy situation arose – D set up another meeting and discussed applicant’s contracting proposal – D told applicant not to commit to contracting by deciding that day and offered applicant opportunity to go through assessment process – Applicant answered assessment questions – D told applicant if decided to do contracting no need for redundancy process – Applicant rang D to confirm preference for contracting – D wrote out letter of resignation as requested by applicant – Applicant did not start contract work when D expected and as result no agreement formed for contracting – D received reference from other employee which stated applicant made redundant – Applicant claimed benefit during last week and payroll manger stated applicant’s position made redundant - Found made sense to hire additional employee given applicant’s skills – Found no evidence of respondent’s organic and down cow initiatives being shams – Found unlikely respondent’s down cow initiative sham given money spent – Found applicant forewarned of issues regarding redundancy and able to fully take part in consultation process – Found redundancy genuine – Found applicant’s role in essence made redundant but applicant’s employment terminated by mutual agreement – Found therefore applicant not dismissed – Found applicant left employment due to potential for redundancy not by any breach of duty by respondent – No constructive dismissal – Found way applicant treated could have led to disadvantage grievance but no such grievance raised – Meat Processing Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Wellington_116.pdf [pdf 32 KB] |