Jinkinson v Oceana Gold (Nz) Ltd
 NZEMPC 102
IN THE EMPLOYMENT COURT CHRISTCHURCH
In The Matter Of A Challenge To A Determination Of The Employment Relations Authority
Raelene Kelly and Kimberley Phillips, counsel for plaintiff
Lesley Brook, counsel for defendant
Challenge of Employment Relations Authority decision that a dismissal was justifiable and there had been no breach of good faith. Plaintiff was dismissed after her job was disestablished and she was not successful in securing the new position which replaced it — whether the position was genuinely redundant — whether the defendant's actions were consistent with its statutory good faith obligations — whether the dismissal decision was justifiable.
Held: Section 103A Employment Relations Act 2000 (“ERAct”) set out the test for determining whether a dismissal was justifiable on an objective basis. The process which led to J's dismissal involved two distinct steps. Oceana first disestablished J's existing position incorporating all the duties into a new position and then Oceana decided J ought not be appointed to one of the new positions. There was a statutory duty of good faith in s4 ERAct (parties to employment relationship to deal with each other in good faith). Where restructuring was involved, as in this case, a procedure that did not comply with s4(1A)(c) (provisions an employer had to make for employees) was not justifiable. J's position was not genuinely redundant because the new position was not significantly different to the one made redundant. The duties and skills were effectively the same, there was no supporting documentation for the proposition employees were required to progress through the levels, and assurances were consistently given by Oceana to staff that training in all necessary skills would be given.
The selection process adopted by Oceana failed to meet the requirements of s4(1A) ERAct (the duty of good faith) and was fundamentally unfair. In particular Oceana failed to inform candidates who were existing employees what the criteria for selection were and the weight to be applied to those criteria prior to their being interviewed. This meant the employees did not have an opportunity to comment on that information prior to selection decisions being made (s4(1A)(c) ERAct).
It was agreed J had all the necessary technical skills but she was never told that there adverse view held of her team work skills. J should have been told of this and given a proper opportunity to respond. The selection process was deficient in a number of other respects as well concerning failure to establish criteria, paucity of notes, weighting and inconsistency of criteria applied. Under cross-examination it emerged that the events relied on to justify views relating to J's lack of team work skills were of little real significance and the views were unreasonable. The decision not to appoint J to the new position for the sole reason of her lack of team work was unsustainable.
For these reasons the decision to dismiss J was not what a fair and reasonable employer would have done and the dismissal was unjustifiable. Oceana was ordered to reinstate J under s125 ERAct, reimburse J for the wages she'd lost (plus interest) and pay $4,000 as compensation for humiliation.
Ms Jinkinson worked for Oceana Gold (NZ) Limited (Oceana Gold) over a period of 19 months from May 2005 until December 2006 when she was dismissed on grounds of redundancy. She regarded herself as a permanent employee of Oceana Gold and considered the termination of her employment to be an unjustifiable dismissal. She pursued a personal grievance alleging that the redundancy was not genuine, that her selection for redundancy was unfair and that Oceana Gold breached its obligations of good faith during the process which led to her dismissal.
That personal grievance was investigated by the Authority which gave its determination on 17 January 2008. 1 The Authority initially concluded that Ms Jinkinson was a casual employee of Oceana Gold at all times. Viewing the matterfrom that perspective, the Authority then found that Ms Jinkinson's dismissal was justifiable and that Oceana Gold had acted in good faith during the redundancy process. The only aspect of Ms Jinkinson's claim upheld by the Authority was that Oceana Gold had treated her unfairly by telling her of her dismissal in an uncaring way. The Authority characterised this as an unjustifiable disadvantage grievance and awarded Ms Jinkinson compensation of $2,000.
Ms Jinkinson challenged all aspects of the Authority's determination other than the conclusion that she had been unjustifiably disadvantaged and the remedy awarded in that regard.. The initial focus of the challenge was on the Authority's conclusion that Ms Jinkinson had at all times been a casual employee. By agreement, that issue was argued as a preliminary issue on which I gave my judgment on 13 August 2009. 2 I decided that, as at December 2006, and for a period of at least a year prior to that date, Ms Jinkinson was continuously an employee of Oceana Gold.
Following that preliminary decision, Ms Jinkinson pursued the second part of her challenge which was to the Authority's conclusions that her dismissal had been justifiable and that there had been no breach of good faith. This judgment deals with those aspects of the matter which proceeded before me by way of a rehearing.
Oceana Gold operates a gold mine at Macraes in Otago, about 90 kilometres north of Dunedin and about 40km west of Palmerston. Much of the mine is open cast. The limited amount of gold bearing ore is mixed with large quantities of waste material. The profitability of the mine depends on locating the gold bearing ore and distinguishing it from the waste. Many different skills and processes are used to achieve this. These include geological research and analysis. At the time in question in this proceedings, they also included two particular roles for field staff: grade control sampling and ore spotting.
Grade control sampling involves taking samples of material for laboratory analysis from holes drilled in the exposed rock. The location from which each sample is taken is recorded and this information, coupled with the results of analysis, enables geologists to trace and predict the location of the gold bearing ore. Staff performing grade control sample work were known as grade controllers.
Once the location of potentially ore bearing rock has been identified, ore spotters guide the operators of the excavation equipment to ensure as far as possible that ore and waste are correctly identified.
While these were the core aspects of those two roles, each involved a range of other ancillary duties.
Ms Jinkinson was engaged as a grade controller and started work on 26 May 2005. During most of the time she was employed, there were six grade controllers at the mine. They were rostered in pairs, each pair working with one of three crews. By 2006, there were three ore spotters, who were rostered to work with all three crews. In general, each shift was worked by a crew including two grade controllers and one ore spotter.
Initially, there were only dayshifts but, during the course of Ms Jinkinson's employment, Oceana Gold implemented rotating shifts covering day, night and weekend work. The number of grade controllers also reduced to four. They continued to work in pairs covering all three crews.
Oceana Gold operated a formal system of five proficiency levels for both grade controllers and ore spotters. To progress from one level to the next required the employee to demonstrate a range of particular knowledge, skill and experience.
Ms Jinkinson began work as a level one grade controller. In February 2006, she had her first level assessment review but was unsuccessful. In September 2006, she was successful in a second review and progressed to level two. This resulted in a pay increase.
During the first part of Ms Jinkinson's employment, grade controllers and ore spotters were responsible to Lindsay Maw who then held the position of geology superintendant. As Mr Maw agreed, however, he had many other responsibilities and much of the day to day supervision of these staff was done by a mine geologist.
In an effort to more effectively supervise the staff working in the mine, it was decided to introduce a new position of ore zone supervisor. Judd Davenport was appointed to that position and took it up on 17 May 2006. From that date, grade controllers and ore spotters reported to Mr Davenport and he reported to Mr Maw. Mr Davenport had previous experience both as a grade controller and as an ore spotter.
Throughout the period with which this case is concerned, the open pit mining manager for the Macraes site was Tadek Wojtowicz.
On 31 October 2006, Oceana Gold announced its intention to review the positions of grade controllers and ore spotters. This was conveyed to staff in a letter signed by Mr Wojtowicz. It described a proposal to disestablish the six existing positions of grade controller and the three positions of ore spotter and replace them with six new positions of pit technician, later renamed mine technician. Affected staff were invited to attend a meeting on 10 November 2006 to discuss this proposal. The letter invited applications from existing...
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