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Iles v Dry Run Holdings Ltd
27 Oct 2006, GJ Wood, WA 147/06, (4 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Respondent registered in New Zealand but run in Australia - Signed employment agreement stated relationship between applicant and franchise trading name PH - Respondent employer at time of termination - Clearly breach of good faith and likely to be misleading if employer failed to describe actual name of employer - PH sold to D - Representatives of D arrived at applicant's store and told staff store closing in two days, and could apply for jobs with D - PH did not contact staff to explain what would happen or give notice - Respondent's director claimed sale and purchase agreement had condition D would take over responsibility for employees on sale, and sale confidential - No evidence provided of agreement - Trite law employer could not transfer employees to new employer without specific approval - Such approval not sought or gained in this case - Would not have been productive to direct mediation - Applicant's dismissal was effect of sale of franchise - Positions offered by D all significant distance away store - Applicant acted reasonably in declining to apply for position - Failed to consult in redundancy situation and pay notice - Unjustified disadvantage - Genuine redundancy as whole business sold - Dismissal justified - Remedies - Compensated for failure to consult and give notice - ARREARS OF WAGES - Applicant not paid final week's wages or payment in lieu of notice - Should have been given two weeks notice - Wages due and owing - COSTS - Applicant assisted by community law centre - Length of investigation meeting not specified - Filing fee only expense incurred - Respondent to reimburse filing fee - Length of service five years four months - Fast food worker
Result: Application granted (Unjustified disadvantage, arrears of wages) ; Application dismissed (Unjustified dismissal) ; Arrears of wages ($840) ; Compensation for humiliation etc ($3,500) ; Disbursements in favour of applicant ($70)(Filing fee)
Purcell v Wired Communications NZ Ltd
29 Jun 2007, P Cheyne, CA 71/07, (4 pages)
UNJUSTIFIED DISMISSAL – Redundancy - No appearance by respondent – Applicant's evidence accepted - Dismissed without notice or warning when told by payroll no further work – Applicant attempted to contact director but he did not return calls – Appeared business had not traded since applicant dismissed, although apparently some staff working for another business run by director – Even (perhaps especially) in case of apparent business failure, employees entitled to fair and reasonable treatment – Dismissal unjustified - Remedies - No written employment agreement specifying notice - Reasonable notice fixed at four weeks - ARREARS OF WAGES AND HOLIDAY PAY - Applicant not paid at agreed rate - Also not paid last week's wages or holiday pay - Monies due and owing - COSTS - Length of investigation meeting not specified - Length of service 14 weeks
Result: Application granted ; Compensation for humiliation etc ($10,000) ; Wages in lieu of notice ($1,300)(Four weeks) ; Arrears of wages ($1,300) ; Arrears of holiday pay ($273) ; Costs in favour of applicant ($1,500)
Viegas v The Flower House (2005) Ltd
27 Jun 2007, Y Oldfield, AA 193/07, (4 pages)
UNJUSTIFIED DISMISSAL – Redundancy – No appearance by respondent – Applicant redundant when shop stopped trading – No notice shop to be closed or discussion regarding redeployment – Authority could not safely conclude redundancy genuine – Dismissal unjustified – Remedies - Authority accepted four week notice period applied - Applicant also alleged respondent’s director spread malicious gossip about her – Evidence on point hearsay and Authority not satisfied assertion well founded - ARREARS OF WAGES AND HOLIDAY PAY – Arrears of overtime and holiday pay due and owing - Applicant unable to provide gross wages and IRD had not received PAYE for her from respondent - Amounts calculated in net terms - Respondent reminded of obligation to pay PAYE - PARENTAL LEAVE – At time of redundancy applicant 4½ months pregnant – Formal parental leave application not completed but had told respondent wished to take parental leave – Applicant’s difficulty finding work after dismissal compounded by understanding no longer eligible for statutory parental leave payment – Sought compensation for loss of benefit – While express statutory provision ensured employees whose employment ended during parental leave retained entitlement to payment, similar provision did not appear to have been made for those whose employment terminated before commencement of leave – Question of eligibility for payment in such cases not tested - Payment a statutory entitlement not obligation of employer - Could not be described as benefit of employment relationship – Authority could make no further order for compensation for loss of parental leave payment – Length of service one year - Florist
Result: Application granted ; Reimbursement of lost wages ($7,150 net)(13 weeks) ; ($2,200 net)(Notice) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($690 net)(Overtime) ; Arrears of holiday pay ($949.79 net) ; Disbursements in favour of applicant ($70)(Filing fee)
Worrall v R Hannah & Co Ltd
3 Oct 2006, J Scott, AA 310/06, (6 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Respondent closed applicant's branch - Applicant declined positions at other branches because of travel involved - Believed respondent should have discussed possibility of role for her at proposed new local store - New branch only an agreement in principle, and dependent on number of requirements being met - Applicant offered position at new store once respondent knew going ahead - Claimed respondent had ulterior motives and only attempting to mitigate exposure to personal grievance claim - Branch closure presented to New Zealand management as fait accompli - No opportunity to consult on closure but proper to consult on alternative positions - Duty to consult did not extend to consulting on position at proposed store when no certainty about role at that location - For consultation to be meaningful must relate to alternatives about which there is certainty or near certainty - If applicant wished to work at proposed store she had duty in good faith to raise issue - Would have enabled respondent to clear up misunderstanding but made no difference to termination of employment - Not a breach of duty that group manager did not personally consult applicant - Authority noted respondent took other reasonable steps in process leading to and following termination, including payments in addition to contractual entitlements, and provision of good reference - Dismissal justified - Length of service 23 years - Manager
Result: Application dismissed ; Costs reserved
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