| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 505 |
| Hearing date | 26 Aug 2011 |
| Determination date | 30 November 2011 |
| Member | R Arthur |
| Representation | M McFadden ; S Wicks, J Wicks |
| Location | Auckland |
| Parties | Cornish v Everlast Contruction Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed dismissal not for genuine commercial purpose and not carried out fairly – Parties agreed that at time applicant’s employment ended project uncompleted and so employment could not be said to have expired on basis contemplated in fixed term agreement – Respondent claimed role carried out by applicant had become redundant because respondent director (“W”) could do role and could not afford to pay applicant’s wages – W expected to put business on hold for foreseeable future due to anticipated positive result for cancer – Authority found applicant’s employment could end for redundancy before end of project and expiry of fixed term – Found redundancy genuine – Found respondent had no other work to offer applicant in existing role – Found disagreements about how work was carried out did not reveal ulterior motive for redundancy – Found applicant only given vague indication rather than clear information about prospect of fixed term agreement coming to premature end – Found no real consideration given to alternatives to redundancy or how redundancy could be implemented – Found redundancy not carried out fairly – Dismissal unjustified – REMEDIES – No contributory conduct – Found since redundancy genuine no order for reimbursement of lost wages appropriate – Found applicant would have been entitled to six weeks lost wages if redundancy not genuine – $2,000 compensation appropriate – Foreman |
| Result | Application granted ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s174 |
| Cases Cited | PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Shortland v Alexander Construction Company Ltd [2010] NZEmpC 41;Williams v Attorney-General [1999] 2 ERNZ 457 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_505.pdf [pdf 45 KB] |