| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 308 |
| Hearing date | 7 Jul 2011 |
| Determination date | 14 July 2011 |
| Member | A Dumbleton |
| Representation | J Phipps ; A Caisley |
| Location | Auckland |
| Parties | Chaimowitz v Goldman Henry Capital Management Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant sought reinstatement following dismissal for redundancy – Applicant informed Managing Director of respondent (“H”) of pregnancy and intention to take paid parental leave (“PPL”) – Applicant and H discussed applicant’s request of PPL being topped up by respondent and upon return to work receiving increased salary – Respondent’s compliance process and procedures underwent review and applicant’s position seen as key issue – Applicant informed of proposal to disestablish position – Applicant invited to provide feedback on proposal with support person at meeting before final decision – Applicant informed position disestablished and employment terminated following meeting – Applicant unable to qualify for PPL as result of termination – Applicant claimed only technical reinstatement sought as would immediately go on PPL – Authority found applicant had arguable case for unjustifiable dismissal and/or unjustified disadvantage – Found no arguable case for reinstatement as remedy since position disestablished for compelling commercial reasons – Found applicant justified in claim that unlawfully suspended by H during redundancy consultation process – Found possibility of lack of justification in way respondent consulted applicant and implemented decision – Found applicant informed former employee about another employee’s salary increase – Respondent claimed lost all mutual trust and confidence in applicant – Found reinstatement impracticable due to incident – Found balance of convenience lay in not ordering interim reinstatement – Found statutory entitlements should not be accessed through artificial interim reinstatement – Found numerous other adequate remedies available – Found overall justice favoured respondent – Found respondent and H did not discriminate against applicant due to pregnancy – Application for interim reinstatement declined – Chief Financial Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s123(1)(c)(i);ERA s125;ERA s127;Parental Leave and Employment Protection Act 1987 |
| Cases Cited | Cliff and Anor v Air New Zealand Ltd [2005] ERNZ 1;GN Hale & Sons Ltd v Wellington, Taranaki and Nelson Caretakers etc IUOW [1991] NZLR 151 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_308.pdf [pdf 32 KB] |