| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 452 |
| Hearing date | 7 Jun 2011 - 9 Jun 2011 (3 days) |
| Determination date | 20 October 2011 |
| Member | R A Monaghan |
| Representation | S Austin ; J Humphrey |
| Location | Whakatane |
| Parties | Snell v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Anor |
| Other Parties | Ngati Awa Tertiary Training Organisation Trust |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by first respondent (“T”) - Applicant claimed was initially employed by second respondent (“O”) but T became employer - Authority found O remained applicant’s employer throughout and T did not trade as O – Applicant claimed role changed to tutoring position but original employment agreement not changed – Found applicant’s role changed during employment - O’s manager (“R”) claimed applicant told R had experienced difficult year due to personal issues but now believed performance had improved – R claimed told applicant funding cuts were likely and would mean number of tutors would be reduced – R claimed applicant responded was not comfortable working with students in classroom – Applicant agreed parties had discussed applicant’s duties but denied discussed number of tutors would be reduced or that said not comfortable with students – Applicant absent when R presented restructure proposal but co-worker gave applicant copy and told applicant needed to apply for job – Applicant unhappy some co-workers did not need to apply for new positions as believed could have applied for alternative role – Found applicant not qualified for alternative role – Applicant interviewed for role believed similar to current role - Parties agreed discussed how applicant’s personal issues had impacted on performance – Applicant denied told R at interview was uncomfortable with students and claimed told R preferred to teach other courses than computing – Found likely applicant commented on performance at interview as applicant acknowledged that performance had caused concern – R claimed during applicant’s interview referred to notes prepared by senior O employee who had helped when O’s previous manager resigned – Notes referred to applicant’s absence from work, inability to handle classes and warnings given to applicant – R told applicant would not be offered further employment based on notes - Applicant claimed R’s decision predetermined – Found R believed employment offered on fixed term basis each academic year and R should have been more accurate and told applicant not being offered one of positions in new structure and employment ended by redundancy – When applicant asked why did not have employment offer told by R decision was based on applicant’s performance – Found was genuine restructure redundancy situation at O – Found however applicant not provided with enough information about proposed restructure or opportunity to have input – Found although concerns about applicant’s performance were raised generally were deficiencies and respondent did not discuss notes’ content or give applicant opportunity to comment on notes – Found likely R’s decision predetermined – Dismissal unjustified – REMEDIES – 15 percent contributory conduct - Found reinstatement not practicable and would be unduly disruptive to O – Found unable to determine whether applicant would have been ranked last if R had conducted fair and reasonable process - $7,956 reimbursement of lost wages appropriate - $1,700 compensation appropriate - ARREARS OF WAGES – Applicant sought payment in lieu of notice and payment for additional hours worked by agreement – Applicant claimed as did not receive formal notice of termination respondent did not pay two weeks’ wages in lieu of notice – Found sufficient information to amount to notice of termination therefore applicant had at least two weeks notice – No arrears of wages - ARREARS OF HOLIDAY PAY – Applicant sought payment of 9 days’ holiday pay – Applicant failed to supply supporting evidence – No arrears of holiday pay - Programme Manager |
| Result | Applications granted (unjustified dismissal) ; Contributory conduct (15%) ; Reimbursement of lost wages ($9,360 reduced to $7,956) ; Compensation for humiliation etc ($2,000 reduced to $1,700) ; Applications dismissed (arrears of wages and holiday pay) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s66;ERA s123;ERA s124;ERA s125;ERA s126;ERA s127;ERA s128;ERA s128(2);ERA s128(3) |
| Cases Cited | Farmers Transport Ltd v Kitchen unreported, Shaw J, 14 December 2006, WC 26/06;Jinkinson v Oceana Gold (NZ) Ltd (2011) 9 NZELC 93,655;Merito v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Ngati Awa Tertiary Training Organisation Trust [2011] NZERA Auckland 450;Merito v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Ngati Awa Tertiary Training Organisation Trust [2011] NZERA Auckland 453;Peka v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Ngati Awa Tertiary Training Organisation Trust [2011] NZERA Auckland 451;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Auckland_452.pdf [pdf 60 KB] |