| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 471 |
| Hearing date | 13 Sep 2011 |
| Determination date | 01 November 2011 |
| Member | E Robinson |
| Representation | W Reid ; A Lilly |
| Location | Tauranga |
| Parties | Pettigrew v Stainless Down Under NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Applicant received numerous complaints from employees about use of certain products and chemicals – Applicant claimed respondent director (“L”) unreceptive when relayed employees’ complaints – L claimed applicant appeared to be unable to cope with larger projects – L appointed mechanical engineer/project manager (“M”) to lessen stress on applicant – Applicant claimed M constantly interfered with production process for which applicant responsible – L issued applicant with formal warning for comment applicant made to L about M and earlier incident with another employee – Applicant resigned and returned to previous position – L claimed financial situation of respondent deteriorated due to several commercial factors – L explained financial situation and possibility of redundancy to applicant – L selected applicant for redundancy on basis had surplus labour in applicant’s area, applicant received higher pay rate for performing identical role, applicant had less experience in role than other employee, reduction in applicant’s reliability due to unauthorised absenteeism and applicant’s lack of team attitude – L claimed applicant’s complaints had not influenced decision – Applicant dismissed – Authority accepted respondent could not start work on most major projects due to factors outside respondent’s control – Found redundancy genuine – Found applicant not requested to reduce salary level – Found inclusion of higher pay rate factor in selection criteria not fair and reasonable – Found unreasonable for L to decide applicant’s time as foreman reduced applicant’s length of service in original role as applicant still performed part of original role throughout working day – Found no evidence produced to support L’s allegation about applicant’s unauthorised absenteeism – Found L entitled to take comment applicant made to L about M into account but other considerations used to support lack of team attitude factor not fair and reasonable – Found respondent did not apply selection criteria in fair and reasonable manner – Found minutes of meetings did not show L discussed selection criteria with applicant or that applicant was provided with opportunity to comment – Found respondent’s procedure unfair - Dismissal unjustified – REMEDIES – No contributory conduct – Authority not convinced applicant made vigorous effort to mitigate loss by finding suitable alternative employment – Three months reimbursement of lost wages appropriate less amount applicant earned during period and one week’s notice which had already been paid – Applicant sought reimbursement for loss of future earnings – Found due to respondent’s financial difficulties applicant may have been made redundant within short period of time – Found applicant not entitled to loss of future earnings – $4,000 compensation appropriate – Polisher/Assembler |
| 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;ERA s4(1A)(c); ERA s4(1A)(ii);ERA s103A |
| Cases Cited | GN Hale & Sons Ltd v Wellington Caretakers IUOW (1990) ERNZ Sel Cas 843;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Telecom New Zealand Ltd v Nutter [2004] ERNZ 315 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Auckland_471.pdf [pdf 68 KB] |