| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 145 |
| Determination date | 03 October 2011 |
| Member | J Crichton |
| Representation | J Guthrie ; M Kamphorst |
| Location | Christchurch |
| Parties | Gall v The Derek Corporation Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably disadvantaged by redundancy process and redundancy sham - Parties agreed to confer on Authority power to make recommendation under s173A Employment Relations Act 2000 – Authority recorded earlier recommendation - Matter determined on papers - Respondent unhappy about applicant’s performance while applicant still on probationary period – Parties had series of telephone meetings to discuss applicant’s performance – After four months employment respondent notified applicant of potential redundancy – Respondent undertook consultation process but applicant’s position disestablished – Authority found not unreasonable for respondent to consider applicant, as experienced sales executive, would cope with redundancy process and respondent also gave applicant appropriate support – Respondent attempted to manage applicant’s performance through regular informal contact including telephone meetings – Found not unreasonable respondent thought applicant would be meeting targets after two months employment - Respondent held formal meeting with applicant – Applicant significantly behind sales targets - Applicant represented by lawyer at meeting and parties agreed applicant had further three weeks to improve performance – Respondent sent applicant letter advising applicant if performance had not improved after three week period termination likely – Applicant claimed respondent’s letter showed dismissal decision predetermined – Found respondent’s letter only set up meeting and reminded applicant of employment conditions – Applicant had lawyer at second meeting, parties agreed probationary period would be extended and weekly target would be reduced – Found in all circumstances respondent could not be criticised for way approached applicant’s performance issues - Respondent claimed restructure necessary as employee resigned and considered how costs could be reduced – Found applicant did not ask to be considered for other positions - Found respondent undertook full and fair consultation process - Found no evidence applicant’s redundancy was sham – Authority recommended applicant’s unjustified disadvantage and unjustified dismissal claims should fail – Parties accepted recommendation - GOOD FAITH – Applicant claimed respondent did not act in good faith – Authority recommended applicant’s good faith claim should fail – Parties accepted recommendation – COSTS – Matter determined on papers - Parties unable to agree on costs - Respondent claimed applicant’s claim had no merit and sought $2,000 contribution towards costs – Applicant claimed by choosing recommendation process had put parties to least cost – Found no reason usual cost principles should not apply to Authority recommendations but daily tariff difficult to apply where no hearing - Found applicant had addressed claim in most cost-effective way possible – Costs to lie where they fall - Sales Person |
| Result | Application dismissed ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s173A |
| Cases Cited | PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Christchurch_145.pdf [pdf 45 KB] |