| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 453 |
| 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 | Merito v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation and Anor |
| Other Parties | Ngati Awa Tertiary Training Organisation Trust |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicant claimed originally employed by second respondent (“N”) but first respondent (“T”) assumed role of employer – Authority found N continued to conduct business in own name – Found arrangement whereby T funded wage and salary payments did not mean T took over role of employer – Found fact that T’s Chief Executive Officer involved in management decisions on interim basis did not mean T employer – Found N remained applicants’ employer – Applicant concerned determination not enforceable because respondents’ had same counsel – Applicant sought determination that would be enforceable in any jurisdiction – Found counsel authorised to act for both respondents – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Applicant employed on fixed term agreement – New General Manager (“R”) discovered N in financial trouble – R embarked on meet and greet process with staff – R claimed student to tutor ratio not suitable – R advised applicant believed activities replicated another staff member’s – Applicant claimed no discussion of merger of roles – R proposed new staff structure – Authority preferred R’s evidence that informed applicant position redundant and encouraged applicant to apply for new positions – Applicant did not apply for new positions as felt belonged to another staff member and applicant did not have requisite qualifications or experience for positions – Applicant dismissed – Found redundancy genuine – Found meet and greet did not amount to clear advice to employees that restructuring was being considered and why, and that input was being sought – Found R did not offer affected employees access to information about proposed structure or opportunity to comment on matter before meeting – Found meeting was briefing rather than opportunity for exchange of information – Found no detailed discussion of how proposed structure arrived at and job descriptions not prepared – Found no real consultation – Authority reframed grievance as unjustified disadvantage due to applicant’s central concern being adequacy of consultation – Found applicant not disadvantaged by failure to consult – Found N’s employees aware of difficulties for several months – Found duplication between roles obvious – Found employees did not question suitability of merging positions – Found due to applicant’s qualifications and experience no realistic prospect of identifying alternative employment at N – No disadvantage – ARREARS OF WAGES AND HOLIDAY PAY – Applicant claimed payment in lieu of notice and alternative holidays not taken – Applicant did not receive formal written notice of termination – Found applicant should have been given formal written notice of termination – Found applicant aware employment would end at end of academic year – Found no payment in lieu of notice payable – Found difficulty with reliability of record that applicant owed two days alternative holidays – Found vagueness of claim unsatisfactory – Found no amount owing – Administration Clerk |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s66;ERA s103A;ERA s103(1)(b);ERA s114;ERA s122;ERA s236;ERA s236(3) |
| Cases Cited | Mehta v Elliott (Labour Inspector) [2003] ERNZ 451;Merito v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation And Anor [2011] NZERA Auckland 450;Peka v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation And Anor [2011] NZERA Auckland 451;Simpsons Farms Limited v Aberhart [2006] ERNZ 825;Snell v Te Runanga O Ngati Awa t/a Ngati Awa Tertiary Training Organisation And Anor [2011] NZERA Auckland 452 |
| Number of Pages | 20 |
| PDF File Link: | 2011_NZERA_Auckland_453.pdf [pdf 89 KB] |