DEREK WAYNE GILBERT v TRANSFIELD SERVICES (NEW ZEALAND) Ltd NZEmpC CHCH
| Jurisdiction | New Zealand |
| Judge | G L Colgan |
| Judgment Date | 29 April 2013 |
| Court | Employment Court |
| Docket Number | CRC 46/10 |
| Date | 29 April 2013 |
IN THE MATTER OF a challenge to a determination of the Employment Relations Authority
CRC 46/10
IN THE EMPLOYMENT COURT CHRISTCHURCH
Challenge to determination of Employment Relations Authority that plaintiff had not been unjustifiably dismissed — plaintiff had been employed in business for over 40 years and was active union member — proposed restructuring of respondent which resulted in plaintiff's dismissal (redundancy) was coincident with industrial action — principal allegation was that there had been discrimination against plaintiff as per s104(1)(b) Employment Relations Act 2000 (“ERA”) (discrimination) — whether this was a case of current or prima facie union activity discrimination (taking place no more than 12 months after relevant union activity) with regard to s107 ERA (prohibited grounds of discrimination for purposes of s104) — whether redundancy was a result of the actions of a fair and reasonable employer.
David Beck and David Goldwater, counsel for plaintiff
Gillian Service and Anna Smith, counsel for defendant
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A The plaintiff was not discriminated against unlawfully by the defendant in his employment and in his dismissal.
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B The plaintiff was dismissed unjustifiably by the defendant.
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C Following any appropriate training and supervision and, if necessary, after the parties have been assisted professionally by a mediator, the plaintiff is to be reinstated to his former position with the defendant or to one no less advantageous to him.
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D For remuneration purposes, that order for reinstatement is to take effect immediately on the delivery of this judgment and will have retrospective effect to the date of the plaintiff's dismissal.
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E To give effect to D (above) the plaintiff is entitled to compensation for all remuneration lost by him as a result of his unjustified dismissal but less any remuneration earned by him during the period that he was dismissed.
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F The plaintiff is entitled to interest on lost wages at the relevant Judicature Act rate calculated from the date of filing of his claims in the Employment Relations Authority to the date of payment of these to him.
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G The plaintiff is to have compensation under s 123(1)(c)(i) of the Employment Relations Act 2000 in the sum of $15,000.
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H The plaintiff's application for a penalty is dismissed.
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I The plaintiff is entitled to costs which, if they cannot be agreed between the parties within the period of two calendar months from the date of this judgment, will be fixed after the filing of memoranda.
JUDGMENT OF CHIEF JUDGE G L Colgan
The issues for decision on this challenge by hearing de novo to a determination 1 of the Employment Relations Authority are two:
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• Whether Derek Gilbert was discriminated against unlawfully because of his union activities and, if so, the remedies for this; and
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• whether Mr Gilbert was dismissed unjustifiably and, if so, the remedies (including reinstatement in employment, compensation for lost remuneration, compensation for humiliation, loss of dignity and injury to feelings, a penalty for breach of statutory good faith obligations, and costs) to which he may be entitled.
Counsel's underestimate of hearing time required meant that the case took twice as long to hear as scheduled. Because of a combination of the unavailability of a courtroom as a result of the Christchurch earthquakes and the court's other business, it could not be resumed for some months. I regret the subsequent delay in issuing this judgment.
The applicable law includes both s 103A (the test for unjustified dismissal) and s 125 (regarding reinstatement in employment) as they were before the amendments to both sections with effect from 1 April 2011 pursuant to the
Employment Relations Amendment Act (No 2) 2010. Although the point was not taken by the defendant, I add the following for the sake of completeness. The plaintiff's causes action arose, at the latest, in late 2009 when Mr Gilbert's employment was terminated. Although I am not aware when he filed his claims in the Employment Relations Authority, it heard these in early 2010 and delivered its determination in mid-May 2010There is no question of the application of the statutory amendments, which only came into force on 1 April 2011, to any aspect of the Authority's determination to which this is a challenge. These proceedings were brought to the Court in mid-June 2010 and were the subject of judicial involvement before the current legislative provisions (new ss103A and 125) came into effect. There were no transitional provisions that accompanied these changes to the law of justification and reinstatement which might have addressed cases such as this. However, there can be no question in my view that the law applicable at the date of Mr Gilbert's dismissal, at the dates of hearing and determining his challenge to that in the Employment Relations Authority, and of the date of the filing of his challenge to that determination in this Court, must continue to apply. That is consistent with the judgment of this Court in O'Connor v Ports of Auckland 2 and indeed the relevant events in this case point even more strongly to the application of the previous law.
So, in respect of whether Mr Gilbert was dismissed unjustifiably, the Court must determine what a fair and reasonable employer would have done, and how it would have done it, in all the relevant circumstances leading up to, and at the time of, dismissal. If Mr Gilbert is found to have been dismissed unjustifiably, his claims to remedies include the primary remedy of reinstatement in employment which s 125 requires the Court to grant subject only to the practicability of this remedy.
The already broad scope of this judgment can be confined somewhat by recording Mr Gilbert's acceptance that the positions held by some Transfield employees would have been genuinely redundant as a result of the new contracting arrangements entered into by the company. That apart, however, Mr Gilbert challenges his own dismissal on grounds of redundancy on a number of bases.
First, Mr Gilbert says that he was selected for redundancy, and thereby dismissed, for improper motives and, in particular, because of his union associated activities.
Next, he says that the number and nature of the positions to be made redundant were determined by Transfield unfairly and in breach of the applicable collective agreement.
He says that his dismissal was unjustified because the company failed or refused to comply with the minimum statutory information provision and consultation requirements in such circumstances.
Finally, the plaintiff says that Transfield relied on improper, unreasonable and flawed methods and information in reaching its decision to dismiss him.
Mr Gilbert says that even individually, or certainly collectively, these omissions or failures by Transfield mean that the Court cannot be satisfied that the s 103A tests of justification for his dismissal have been met by the defendant.
This was issued on 14 May 2010 following an investigation meeting conducted by the Authority on 11 and 12 February 2010 and written submissions made in the following weeks. It was regrettable that this challenge to the Authority's determination took almost 18 months to come on for hearing in this Court. The file shows that as the matter was about to be timetabled to a hearing at a directions conference on 28 January 2011, the parties sought a reference to further mediation and this was agreed to by the Court. Mediation was scheduled for 25 February 2011 but was made impossible by the Christchurch earthquake which occurred three days before that. Further mediation eventually took place on 2 May 2011 but settlement was not able to be achieved. By then, Mr Gilbert had engaged counsel and, understandably, Mr Beck wished to amend the plaintiff's statement of claim. No one has, however, suggested that these delays have themselves made either the task of retrying the case or, if applicable, the remedies sought (particularly including reinstatement), any more difficult or impracticable.
The plaintiff now has counsel, as opposed to the lay advocate who represented him in the Authority, and his case has undoubtedly benefited from that and other refinements. That may be the reason why, I have to say with respect, the Authority's written determination does not really engage with the difficult issues thrown up by a downsizing redundancy dismissal and by a claim to union activity discrimination. After a bare recitation of the uncontroversial facts, the Authority accepted uncritically, without explanation, and without much, if any analysis, the employer's claims of justification. For example, under the heading “Discrimination” the Authority concluded at [49]:
There is simply no evidence put before the Authority that this [discrimination by conduct which had the effect of treating a person or group of persons differently in a situation where such treatment could be unlawful under the Human Rights Act 1993] was the case and that Mr Gilbert's union affiliations weighed in the balance at all when it came to a decision regarding his retention.
Other important parts of Mr Gilbert's claim were disposed of with similar brevity. As will be seen, the case now raises significant issues relating to justification for dismissal by reason of redundancy. The plaintiff's unlawful discrimination grievance is sufficiently unusual and raises issues of law and the role of background events of such concern, to also warrant more than brief treatment.
Some of the relevant facts have been agreed between the parties and I will incorporate them into the following...
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