ANGELIQUE STEVENS v HAPAG-LLOYD (NZ) Ltd NZEmpC AUCKLAND
| Jurisdiction | New Zealand |
| Judgment Date | 12 March 2015 |
| Docket Number | ARC 87/13 |
| Date | 12 March 2015 |
| Court | Employment Court |
[2015] NZEmpC 28
IN THE EMPLOYMENT COURT AUCKLAND
ARC 87/13
ARC 7/14
In the matter of a challenge to a determination of the Employment Relations Authority
E Hartdegen, counsel for plaintiff
P Kiely and S Worthy, counsel for defendant
Two challenges are before the Court. The first is Mrs Stevens' challenge to a determination of the Employment Relations Authority (the Authority) dismissing her claim that she was unjustifiably dismissed and disadvantaged. 1 The second is a challenge by Hapag-Lloyd (NZ) Ltd (HL Ltd) to the Authority's subsequent costs
determination, finding that although Mrs Stevens had unreasonably declined a Calderbank offer, costs of $2000 were appropriate given her financial circumstances. 2 It seeks costs in the Authority of $20,000.Both challenges were heard on a de novo basis.
HL Ltd is a subsidiary of the Hapag-Lloyd group, a global shipping enterprise which transports goods around the world to and from various destinations. Mrs Stevens was employed by HL Ltd for around seven years, in the role of Manager, Customer Service Imports. She was no stranger to the shipping industry having previously worked as imports coordinator for another company involved in the business. It is clear that she was a highly regarded and valued employee of HL Ltd and the Imports Team, which she managed.
During 2012 consideration was being given to the possibility that increased efficiencies might be made by off-shoring some imports functions to the Hapag-Lloyd Global Service Centre in Chennai. The proposal emanated from Hapag-Lloyd's headquarters in Hamburg. Mr Carter, the Managing Director of HL Ltd, was not involved in these early discussions. He was advised of a proposed pilot project involving Australia and New Zealand towards the end of November 2012. While a pilot project was proposed, together with a timeframe for its completion, I accept Mr Carter's evidence that it remained open to HL Ltd to explore whether, and if so what, change was feasible and advisable. I also accept his evidence that if changes to the imports function within HL Ltd had not been feasible he would have reported that and the pilot project would not have proceeded in respect of New Zealand. Mr Carter's evidence in this regard was supported by that of the Director Business Administration, Mr Smith.
On 6 December 2012 Mr Carter met with a number of managers, including Mrs Stevens and her manager, Ms O'Brien (Customer Services Director). The purpose of the meeting was to discuss undertaking a review of HL Ltd's import
functions and processes to assess the viability of off-shoring some of this work. It was clear that the proposal, if implemented, would likely have resource implications. Mr Carter made it plain that the review would be undertaken in a consultative and inclusive manner and that feedback was welcome. He emphasised that the intention was to retain staff within HL Ltd, as reflected in the minutes of the meeting. The timeframe for the review was discussed, with proposed completion by the end of March 2013. Mrs Stevens was involved in the review and was also involved in a number of meetings relating to an assessment of the feasibility of the pilot project, assisting in developing HL Ltd's feedback.As it transpired, in February 2013 HL Ltd concluded that its business may indeed be able to operate more efficiently. In particular, it was considered that the key releasing function (controlling the release of containers at terminals once payment and documentation has been received) could be off-shored. It is this conclusion which underpinned the proposal to restructure the Imports Department.
Mr Carter announced the proposed restructure to Mrs Stevens at a meeting on 28 February 2013. Ms O'Brien was also present. Mrs Stevens was advised that the proposal was that two import coordinator roles, currently reporting to her as Imports Manager, would be transferred to the Documentation Department and that her role would be disestablished. At the meeting Mrs Stevens received a letter confirming the proposed restructure and the purpose of it. The letter advised that the proposal was to reduce the number of import positions from four to two to “create greater efficiencies and productivity levels across the Imports Department” and that “[s]hould the proposed restructure proceed other options of alternative employment within [HL Ltd] will be made available.” The proposal was that there would be two available positions in the Sales Support Team, namely a Sales Support Coordinator and a Sales Support Manager position.
Feedback from Mrs Stevens was sought, and a form enclosed for that purpose. She was advised that the feedback would be reviewed and that changes or adjustments to the proposal would then be made. She was also advised that a further meeting would be scheduled with her to discuss the process and to provide an opportunity to ask any questions she might have regarding her personal situation. A copy of an announcement to staff was enclosed for Mrs Stevens' information.
A document setting out an indicative timeline was also provided to Mrs Stevens, which identified dates for meeting with affected staff to outline the proposal, the timeframe for feedback on the proposal, consideration of the feedback provided and communication of a decision about the final structure and selection criteria, one-on-one meetings with affected employees giving advice of preliminary opportunities for redeployment and final advice about redeployment.
Mrs Stevens raised a number of concerns about the way in which the meeting on 28 February unfolded and the information she was provided with. I did not find her evidence in relation to the meeting straightforward. She suggested that the company deliberately provided ambiguous information to her, prompted by ulterior motives. She said that she understood from the meeting that her role was going to be made redundant and that the decision had already been made. However she later criticised Mr Carter for not telling her that her position would be disestablished.
No formal minutes of the meeting were before the Court. There was, however, a PowerPoint presentation which Mr Carter said formed the basis for discussion. While there is some uncertainty as to the detail of what was discussed with Mrs Stevens at the meeting of 28 February I am satisfied that it was made clear to her that there was a proposal to disestablish her role and that her feedback on that proposal was being sought. The indicative timeline document made it abundantly clear that the proposal was just that – a proposal, and that final decisions had yet to be made. The PowerPoint presentation, which was shown to Mrs Stevens on a large screen, clearly highlighted the reasons underlying the restructuring proposal (to achieve better efficiencies and productivity in the current difficult shipping environment), the details of the proposal and advice as to what it might mean for affected staff, including Mrs Stevens. The current and proposed structure of the Imports Team was presented in a simple, readily digestible, diagrammatic form. The position that Mrs Stevens held was notably, and obviously, absent from the proposed structure. The consultation process was also outlined, together with the proposed timeframes for various aspects of the process. It was proposed that the new structure would be in place by 1 April 2013. An opportunity was given for questions at the end of the presentation.
A meeting with other members of the Imports Department was also conducted on 28 February. Mrs Stevens attended this meeting too. The PowerPoint presentation was shown again and the details of the proposed restructure and the process that would be followed were outlined. Immediately following the meeting a query was sent on behalf of the Imports Team, to which a response was provided. One of the identified issues related to redundancy:
Q. Is redundancy an option if a person does not wish to apply for either of the positions?
A. The intention is to redeploy affected employees in similar roles to those held today.
Q. What happens if all 3 coordinators want the doc's position, or the Sales Support position? There are only 2 positions in docs and 1 in SS, does the 2nd/3rd person get made redundant, if so how is that person chosen?
A. The usual selection criteria applies to the Sales Support postings with the most suitable candidate closest to the required skills.
By posting the role internally there may be other opportunities that will present themselves.
Mrs Stevens sent two emails in relatively quick succession to Mr Carter on 4 March 2013. The first was sent at 8.54 am, advising that she had understood following the 28 February meeting that her role would be disestablished on 31 March and that her position would therefore be “subject to redundancy”. She went on to say:
I seek confirmation that I am entitled to a severance payment … as per the terms and conditions of my employment contract, clause 7-A.
As this has a significant impact on my employment I require a response by close of business today.
(emphasis added)
The next email was sent at 8.56 am, seeking confirmation that the Import Manager role and one Import Coordinator role would be redundant, advising that this was consistent with verbal advice she had received during the course of the meeting on 28 February. She also referred to advice she had received that there would be one Sales Support Manager position and one Sales Support Coordinator position, both of which would be posted internally to all staff. She queried whether this was correct, in light of the documentation that had been provided. Mrs Stevens went on sick leave on 5 March.
Mr Carter responded...
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