Wang v Hamilton Multicultural Services Trust Ak

• Jurisdiction: New Zealand
• Court: Employment Court
• Judge: M E Perkins
• Judgment Date: 27 October 2010
• Docket Number: ARC 1/10
• Date: 27 October 2010

IN THE MATTER OF a challenge to a determination of the Employment Relations Authority

AND IN THE MATTER OF proceedings removed from the Employment Relations Authority

BETWEEN

Ning (Neil) Wang

Plaintiff

and

Hamilton Multicultural Services Trust

Defendant

[2010] NZEMPC 142

ARC 1/10

ARC 9/10

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to an Employment Relations Authority decision which held the plaintiff's redundancy was genuine — whether plaintiff contributed to the redundancy by refusing to renegotiate job description and by refusing to apply for the new position generated — whether defendant should have redeployed the plaintiff to the new position rather than advertising the new position and requiring him to apply — whether a failure to redeploy meant employer failed to act as in a way that a fair and reasonable employer would have done — s103A Employment Relations Act 2000 (“ERA”) (test of justification) — whether reinstatement was an appropriate remedy — whether an award of compensation should be given, and if so, whether it should be reduced for contributory conduct under s124 ERA (remedy reduced if contributing behaviour by employee).

Appearances:

Mr N Wang in Person

Ms E Wilkinson, Representative for the Defendant

JUDGMENT OF JUDGE M E Perkins

Introduction

1 The plaintiff Mr Wang commenced employment with the defendant, the Hamilton Multicultural Services Trust (the Trust) in February 2003. During the time of his employment he occupied a number of positions. At the time of termination of his employment with the defendant he held the position of financial administrator.

2 His employment was terminated on 13 July 2009 following four weeks' notice, although he finished work on 6 July 2009 without working out the full period. The ground for terminating his employment was that his position became surplus to the requirements of the Trust due to restructuring.

3 The restructuring carried out by its directors created a new position managing the Trust's financial affairs; finance manager. The defendant advertised the new position publicly. The plaintiff was invited to apply for the new position of finance manager but he decided not to do so on the grounds that it might jeopardise his claim.

4 Mr Wang raised a personal grievance on 10 September 2009. The grievance was not resolved and Mr Wang referred the matter as an employment relationship problem to the Employment Relations Authority for resolution. An investigation meeting was conducted on 19 November 2009. 1 A determination was issued on 14 December 2009. The Authority held that the Trust had generally acted appropriately in the way it dealt with Mr Wang's redundancy and that it was genuine. However, in one respect, namely the failure to supply Mr Wang with a copy of the original Treasurer's Review Report, which preceded the redundancy, the Trust was held to be deficient and Mr Wang received an award of $1,000. That has been paid to him.

5 On 8 January 2010, Mr Wang filed a challenge in this Court relating to the whole of the determination and seeking a hearing de novo.

6 In May 2009, prior to the termination of his employment, Mr Wang had lodged in the Authority another employment relationship problem for determination. This alleged that he had been discriminated against in his employment. Mr Wang had commenced contemporaneous proceedings by way of complaint to the Human Rights Commission. Those proceedings were unresolved at mediation. On 20 November 2009, the Employment Court ruled that despite the unresolved proceedings before the Commission, Mr Wang was entitled to pursue his personal grievance before the Authority. 2 The matter was set down for an investigation meeting but did not proceed as events were overtaken by the termination of employment for redundancy. Accordingly, the Authority by consent issued a further

determination on 8 February 2010 transferring the proceedings, based on the allegation of discrimination, to the Court so that they could be heard along with the challenge. 3

7 Mr Wang has filed a separate statement of claim in respect of each proceeding.

The pleadings

8 In many ways the sequence of events giving rise to the allegations of discrimination were a pre-cursor to the decision to restructure the management roles within the Trust. This included the plaintiff's position as financial administrator. This is confirmed in the form of pleadings filed, particularly the statement of claim commencing the challenge in respect of the termination of employment. The issue of discrimination on the basis of ethnicity is raised in that claim as well as the claim based on allegations of unjustified disadvantage.

9 In respect of the disadvantage claim, Mr Wang alleges that the sole director of the defendant discriminated against him in his employment on the basis that he is Chinese. He claims that the director expressed hostility towards him and harassed him repeatedly in an offensive and detrimental manner and she treated him in a way, which was inconsistent with her treatment of other employees of different ethnic groups. He enunciates a series of incidents, which occurred between April 2008 and May 2009. The complaints consist of allegations of verbal abuse by the director, altering Mr Wang's areas of responsibility without consent, imposing unreasonable demands upon him for completion of work responsibilities, using profane language in his presence, refusing to allow him payments of overtime for working extra hours to complete tasks requested by her, unjustifiably issuing a formal verbal warning to him, and indicating that she intended to restructure his position. Of course this latter point leads to the steps subsequently taken to restructure the management roles. Those in turn led to the termination of employment.

10 In his statement of claim Mr Wang mentions the fact that he complained to the Board of Trustees (the Board) who then supported the director. He seeks remedies that the defendant both revokes the warning issued to him and pays him compensation of $10,000 for humiliation, loss of dignity and injury to feelings. He also seeks costs.

11 So far as the statement of claim in respect of the termination of employment is concerned there is again an allegation of harassment and discrimination on the basis of his ethnicity, although it appears that may simply be a repetition and transposing of the allegations in respect of the earlier claim. His allegation is that there was no genuine redundancy and that in any event proper procedures were not followed in the way that he was treated. He also alleges that he was not properly consulted as a result of the decision to restructure the management positions including his own and that he was not offered any redeployment. He refers to the fact that the new position of finance manager was publicly advertised; that his experience and qualifications meant that he could fulfil the new role and should have been redeployed to it. He did not apply for the new position when advertised because he did not wish it to appear that he agreed with what the defendant was doing. The remedies that he seeks are reinstatement to his former position or a new position that is at least as advantageous to him as his former position. He also seeks compensation for loss of income for the period following his dismissal together with compensation for the loss of employer subsidised contribution towards his Kiwisaver scheme. He also claims compensation of $20,000 for humiliation, loss of dignity, injury to feelings and mental anguish suffered as a result of the dismissal. Finally, he seeks an order for costs.

Factual discussion

12 Mr Wang called Mr David Vincent as a witness in support of his claim. Mr Vincent presently works as a network facilitator. From 2002 until 2007 he was the manager of the Trust and was responsible to the Board for all of its operations. He confirmed that during the time he held this position Mr Wang was employed in various roles, which developed in complexity as the organisation grew. He stated that because of the small size of the organisation, staff had to approach their work in a flexible and co-operative manner not often found in larger organisations where the role clarity is more rigid.

13 Mr Vincent confirmed in evidence that for a period of three weeks while he was abroad Mr Wang stood in for him as acting manager. This required him to have an increased financial delegation for that period. He confirmed that between 2003 and 2007 Mr Wang contributed to the preparation of the annual Trust budget. The primary role was to provide Mr Vincent with financial data regarding expenditure and income to date. This information was important as a background to operational and financial planning. Mr Vincent confirmed that he consulted Mr Wang on a regular basis and valued his opinion in matters of financial forecasting. He confirmed that Mr Wang was not responsible for the operational or financial performance of individual business units of the Trust nor for the financial performance of the organisation overall.

14 When Mr Vincent retired from the position his role was taken over by Ms Rebecca Fraser. She had previously been employed with the Trust and subsequently became its director.

15 Ms Fraser along with other witnesses confirmed that until about mid 2008 the relationship between Mr Wang, Ms Fraser and other employees was a friendly and pleasant one. However, as the work of the Trust expanded strains became apparent particularly in the relationship between Mr Wang and Ms Fraser.

16 Mr Wang in his evidence referred to the period at the end of Mr Vincent's employment when his responsibilities kept changing as did the title of his position. He stated that the changes included transferring the responsibilities of invoicing for the interpreting service and centre venue hiring to two related co-ordinators as well as changes...