| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 444 |
| Hearing date | 31 Aug 2011 |
| Determination date | 13 October 2011 |
| Member | R A Monaghan |
| Representation | K Heywood (in person) ; R Thomas |
| Location | Rotorua |
| Parties | Heywood v Ronanye Construction Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days - Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant failed to raise grievance in time – Applicant did not raise grievance with respondent directly but set out grievance in letter to Authority six months later – Authority found letter to Authority did not amount to raising of grievance – Respondent received applicant’s statement of problem month after letter sent to Authority - Found no grievance raised until well outside 90 days – Applicant claimed distress and trauma after dismissal were exceptional circumstances – Found applicant’s reaction to dismissal did not amount to exceptional circumstance – Respondent’s managing director (“T”) denied parties did not have written employment agreement (“EA”) and EA did not include explanation of time limit on raising grievances – Respondent produced copy of EA as supporting evidence – Found supporting document produced by respondent only unsigned and undated template and did not include applicant’s name – Found template not adequate evidence was written EA between parties and Authority not satisfied EA between parties contained explanation - Found were exceptional circumstances causing delay in raising grievance – Found applicant’s grievance had merit - Leave to raise grievance out of time granted - UNJUSTIFIED DISMISSAL – Redundancy – Respondent’s workload significantly decreased due to economic downturn and at least ten employees made redundant – T told applicant no work available and employment would be terminated on week’s notice – Applicant claimed told by respondent two years before redundancy would be ‘one of last to go’ but when dismissed workforce remained - Applicant claimed co-workers who had been made redundant were re-engaged and respondent had promised to protect employment of younger employees – Respondent claimed two employees were re-engaged as casual employees and only made observations of impact of redundancy on younger employees – Found applicant’s redundancy not imposed because of applicant’s age and respondent acted genuinely in concluding applicant’s position redundant – Found respondent’s assurance applicant would be ‘one of last to go’ was two-year old reassurance, not legally binding and respondent made necessary response to economic change – Found respondent’s re-engagement of employees as casual workers did not mean applicant’s redundancy was unfair and unjustified – Found however T did not consult with applicant and only called applicant into office and announced termination – Applicant claimed would have taken up to two months unpaid leave while waited for work – Found if applicant had been consulted would have allowed applicant to make leave suggestion – T claimed unpaid leave arrangement unfair to applicant and no work became available – Found therefore applicant’s unpaid leave suggestion could have been rejected by respondent – Found respondent should have given applicant some warning of redundancy possibility although consultation would not have avoided applicant’s redundancy – Due to lack of consultation respondent failed to act as fair and reasonable employer – Dismissal unjustified – REMEDIES – Found as redundancy genuine award for lost remuneration not appropriate - $3,000 compensation appropriate - Project Supervisor |
| Result | Applications granted ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s114;ERA s114(3);ERA s114(4);ERA s115;ERA s115(c) |
| Cases Cited | Creedy v Commissioner of Police [2008] ERNZ 109 ; [2008] 3 NZLR 7;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_444.pdf [pdf 43 KB] |