| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 493 |
| Hearing date | 22 Sep 2011 |
| Determination date | 15 November 2011 |
| Member | E Robinson |
| Representation | I Bisset (in person) ; L Petrou |
| Location | Auckland |
| Parties | Bisset v Canam Construction Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed redundancy genuine – Applicant employed to manage project in Papua New Guinea with view to manage Auckland projects once business growth in Auckland increased – Respondent claimed in regular management meetings company’s lack of profitability discussed and overall structure top heavy – Applicant claimed did not recall discussion about overhead structure or the need to reduce costs – Managing Director (“P”) claimed had several discussions with applicant about need to restructure – P claimed sent out memorandum about restructuring – Applicant claimed did not recall any discussion with P about restructuring or receiving memorandum – General Manager (“C”) claimed did not recall memorandum but recalled meeting held to discuss restructure and proposed new structure did not contain Construction Manager position – Applicant claimed did not recall there not being Construction Manager position – P claimed applicant refused to consider new position created – Applicant not appointed to position because others had more experience – P claimed offered applicant alternative position to manage Papua New Guinea project but applicant rejected position – Applicant claimed no position available as Project Manager appointed for Papua New Guinea project – Applicant dismissed – P agreed that applicant could keep company car until end of notice period but applicant to return company telephone – Applicant and P disagreed about what was agreed upon for returning telephone – Applicant returned all company property following heated discussion with P – Authority found C employed for succession planning and to inject capital into company – Found meeting minutes clearly set out respondent experiencing financial difficulties and restructuring necessary because overhead structure top heavy – Found meetings held to discuss structure – Found several positions redundant – Redundancy genuine – Found applicant aware respondent experiencing financial difficulties and overhead structure unsustainable – Found C and applicant would have recalled memorandum if received – Found no evidence applicant provided feedback – Found no evidence P or C discussed with applicant that applicant’s position might be affected by restructuring – Found insufficient evidence that respondent complied with statutory good faith requirements – Found no advance notice given of meeting when dismissal occurred – Found applicant not advised could have support person present – Found letter terminating applicant’s employment pre-prepared – Found offer of position of Project Manager for Papua New Guinea project not genuine – Dismissal unjustified – REMEDIES – Found no reimbursement of lost wages as redundancy genuine - $3,000 compensation appropriate – Applicant claimed bonus payment not made – Found no performance targets set – Found not possible to determine whether applicant entitled to bonus – Found applicant entitled to return company vehicle on day employment terminated – Found applicant returned vehicle of own volition – Found no loss of benefit – Found no contractual entitlement to relocation expenses – Found no order for refund of relocation expenses – Parties to resolve issue of outstanding monies owed – Construction Manager |
| Result | Application granted ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(c);ERA s103A |
| Cases Cited | Aoraki Corporation Limited v McGavin [1998] ERNZ 601;Cammish v Parliamentary Service [1996] ERNZ 404;Candle New Zealand Limited v Riley [1999] ERNZ 251;GN Hale & Son Ltd v Wellington Caretakers IUOW [1991] 1 NZLR 151;Simpsons Farms Limited v Aberhart [2006] ERNZ 826 |
| Number of Pages | 15 |
| PDF File Link: | 2011_NZERA_Auckland_493.pdf [pdf 71 KB] |