| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 445 |
| Hearing date | 9 Aug 2011 |
| Determination date | 14 October 2011 |
| Member | E Robinson |
| Representation | D Christensen ; M Wisker |
| Location | Auckland |
| Parties | Nafissi v New Zealand School of Education Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Applicant appointed on permanent basis – Applicant did not receive full performance bonus on several occasions and informed by Academic Manager (“B”) that unless performance improved may not have job following year – B denied threatened applicant with loss of job – Chief Executive Officer (“C”) claimed changes to immigration policies caused a significant drop in student numbers – C claimed two staff members resigned and not replaced and management team did not receive dividend payments, took pay reductions and gave up opportunity for bonuses – Respondent revised fixed term agreements to include reason for fixed term and redundancy clause – Some fixed term employees treated as permanent – B asked staff for ideas on how to improve business – B invited staff to initial consultation meeting – B advised staff of possible redundancies and invited feedback – B rejected applicant’s suggestions – Applicant attended meeting and offered redeployment option which applicant rejected as not tutor role – Applicant claimed weighting given to certification disadvantaged applicant in selection process – B claimed selection criteria altered – Applicant informed position redundant – Respondent offered assistance with career guidance to applicant – Farewell lunch held for redundant staff – Authority found respondent had genuine commercial reasons for undertaking redundancy exercise – Level 5 tutors excluded from restructure because unaffected by immigration policy changes as majority of students domestic – Applicant consistently taught at level 7 but relieved level 5 tutors – Found applicant level 7 tutor and position affected by restructuring exercise – Found genuine commercial reason to exclude level 5 tutors from selection pool – Found exclusion fair and reasonable – Applicant claimed no genuine consultation because not provided with access to information relevant to continuation of employment until meeting with B – Found applicant provided with detailed information and in timely manner – Found genuine consultation – Found respondent followed fair and proper selection process – Found applicant did not pursue respondent’s offers of support to find alternative employment – Found those who did take support found alternative employment in timely manner – Found respondent created situation in which reduction of staff could appropriately have been made with terms of new fixed term agreements – Found tutors who accepted to be treated as permanent employees at time of restructuring should have been selected for redundancy prior to applicant – Found decision to treat all level 7 tutors as permanent employees resulted in unfair process – Found selection criteria fair, measurable and objective – Found no predetermination – Found fundamental error in treating all level 7 tutors as permanent, apart from applicant, as were previously subject to valid fixed term agreements – Dismissal unjustified – REMEDIES – Applicant sought reinstatement – Respondent claimed no longer had trust and confidence in applicant because tried to discredit respondent – Found applicant did not act in good faith – Found reinstatement not practicable – Found applicant did not made vigorous effort to mitigate loss by finding suitable alternative employment – 3 months lost wages appropriate less notice period – Parties to determine quantum – Found applicant experienced humiliation and distress - $4,000 compensation appropriate – Applicant claimed compensation for certification training, bonus payments and overtime – Found applicant did not take advantage of funding for certification training – Found applicant did not meet bonus payment conditions – Found applicant produced no evidence to substantiate overtime claimed – Senior IT Tutor |
| Result | Application granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s66(2)(a);ERA s103A;ERA s125;Labour Relations Act 1987 s184(5) |
| Cases Cited | ASTE v Central Institute of Technology [1991] 2 ERNZ 464;Cammish v Parliamentary Service [1996] ERNZ 404;GN Hale & Son Ltd v Wellington Caretakers IUOW [1991] 1 NZLR 151;Simpsons Farms Limited v Aberhart [2006] ERNZ 825 |
| Number of Pages | 25 |
| PDF File Link: | 2011_NZERA_Auckland_445.pdf [pdf 127 KB] |