| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 406 |
| Hearing date | 21 Jun 2011 |
| Determination date | 19 September 2011 |
| Member | Y S Oldfield |
| Representation | F Board (in person) ; K Beck |
| Location | Auckland |
| Parties | Board v Adecco NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed redundancy not genuine - Applicant told position would be disestablished, parties discussed redeployment but as no suitable role identified applicant’s employment terminated – Respondent claimed redundancy due to genuine commercial reasons as changes to management of respondent’s international group meant applicant’s role and similar position in another two countries disestablished and senior manager (“R”) to look after three countries – Country manager (“M”) claimed changes to management structure not surprising and should not have surprised applicant as possibility of role being disestablished was raised prior to applicant accepting position – M claimed disestablishment possibility incorporated into employment agreement’s special redundancy provisions – Applicant did not dispute M’s evidence but claimed respondent manufactured or at least exploited restructure to get rid of applicant – Applicant’s doubts about genuineness of redundancy arose year before position disestablished when respondent not performing well and applicant required to report to M in capacity as “Country Manager, Japan, Australia and New Zealand” – M concerned unable to give respondent attention required and respondent’s former chief executive officer (“S”) took up part-time role in respondent’s head office to give applicant guidance and support – Parties agreed applicant remained in charge of respondent but reported to S on strategic direction – Applicant and S concerned applicant had too many direct reports and M accepted recommendation that national operations manager (“X”) be appointed to decrease applicant’s day to day responsibilities - Since inception X’s responsibilities had increased but remuneration less than applicant’s remuneration when started employment – Applicant claimed X’s role created as part of respondent’s succession plan – S claimed X’s role initiated by applicant and preferred appointment of two regional manager roles reporting to applicant – Authority found different perceptions of X’s role due to applicant’s mistrust of S and applicant’s failure to be open and honest with S – Found S created X’s position in belief respondent required additional resources, applicant supported proposal and M signed off proposal for same reasons – Applicant claimed S motivated by self interest and wanted to increase work with respondent – Found no evidence that M or S had any input into restructure decision - Found restructure decision consequence of actions within respondent’s international group and not about applicant – Found disestablishment of applicant’s position for genuine commercial reasons – Applicant and S had meeting with R to present respondent’s future strategy - Respondent claimed applicant aware of restructure risk and met with R previously fully aware risk increasing – Found applicant’s future strategy meeting with R not part of consultation process about possible redundancy – M met with applicant to discuss disestablishment – Decision position would be disestablished made before second meeting and applicant and M only considered redeployment options – Found no consultation with applicant about disestablishment before decision made, respondent’s actions not those of fair and reasonable employer but inadequate consultation not serious enough to affect justified dismissal - Respondent claimed applicant restricted redeployment options to only some countries and difficult to find applicant suitable role – Applicant claimed as disestablishment already possibility when X appointed expected respondent to have held X’s role open for applicant – Found applicant’s expectation unreasonable and respondent met obligations when explored redeployment options - REMEDIES – Found applicant entitled to compensation for respondent’s inadequate consultation - $10,000 compensation appropriate - ARREARS OF HOLIDAY PAY – Applicant claimed when holiday pay calculated, incorrectly excluded bonuses received over two years – Respondent accepted excluded one year but claimed following year bonus discretionary – Found respondent not bound to offer same bonus scheme each year but once bonus plan in effect for year annual bonus not discretionary – Found applicant entitled to $17,060 arrears of holiday pay – ARREARS OF WAGES - Respondent also discovered when checked wage and time records applicant owed $2,526 arrears of wages – Applicant entitled to $2,526 arrears of wages - Chief Executive Officer |
| Result | Applications granted ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay ($17,060.95) ; Arrears of wages ($2,526.59) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s114 (6);Holidays Act 2003 s8;Holidays Act 2003 s14;Holidays Act 2003 s21(2)(b);Holidays Act 2003 s24(2) |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_406.pdf [pdf 34 KB] |