| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 443 |
| Hearing date | 16 Aug 2011 |
| Determination date | 12 October 2011 |
| Member | A Dumbleton |
| Representation | J Phipps ; P Knapp |
| Location | Auckland |
| Parties | Chaimowitz v Goldman Henry Capital Management Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably dismissed and disadvantaged by respondent - Authority found justification for dismissal to be determined under amended s103A Employment Relations Act 2000 - Applicant told due to security reasons applicant’s job needed to be split into two part-time jobs – Applicant claimed was shocked and distressed after meeting – Applicant pregnant and made application for parental leave after meeting – Applicant told in meeting to go on garden leave and that if proposal to split applicant’s role was accepted applicant’s position would be disestablished – Applicant given opportunity to give feedback and invited to bring support person to next meeting - Respondent claimed garden leave was actually medical leave as applicant seemed unwell – Found applicant required to take garden leave before decision made about proposal or applicant given notice about termination - Applicant requested employment not terminated before baby born or applicant received first parental leave payment – Respondent claimed could not delay restructuring and needed to implement changes as quickly as possible - Applicant agreed redundancy only viable option – Applicant told could apply for part-time job – Applicant gave respondent medical certificate stating was well enough to continue working – Respondent’s director disagreed applicant well enough to work and decided applicant should remain on medical leave until matter resolved - Respondent sent applicant letter advising applicant’s position terminated - Respondent sent notice again two weeks later – Authority accepted applicant’s evidence did not receive first notice – Found respondent had no alternative to disestablishing applicant’s position therefore applicant’s dismissal substantively justified – Found applicant adequately consulted about restructuring proposals – Found respondent prepared to be flexible and acted as fair and reasonable employer – Dismissal justified – Found however respondent acted without justification and to applicant’s disadvantage by insisting that applicant go on medical leave although applicant had provided medical certificate stating could work – Found fair and reasonable employer would not have sent applicant home when only medical evidence available was that applicant fit to work – Found applicant reasonably expected that would continue working until employment terminated – Unjustified disadvantage – REMEDIES - $5,000 compensation appropriate - Applicant claimed entitled to recover payment for parental leave – Found applicant not entitled to recover payment for parental leave under Parental Leave Employment Protection Act 1987 - ARREARS OF WAGES – Found applicant entitled to be paid in lieu of notice one month from when second notice received – Found applicant not entitled to recover wages from date employment ended until start of intended parental leave – Applicant entitled to $1,846 arrears of wages - ARREARS OF HOLIDAY PAY – Authority accepted applicant’s evidence holiday pay due and owing however found applicant’s gift of ‘bonus’ days should not be included as part of annual leave entitlement – Parties to recalculate annual leave due and determine quantum - Chief Financial Officer |
| Result | Applications granted (unjustified disadvantage and arrears of wages and holiday pay) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($1,846) ; Arrears of holiday pay (quantum to be determined) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s122;ERA s127;Parental Leave Employment Protection Act 1987 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_443.pdf [pdf 47 KB] |