Wang v Hamilton Multicultural Services Trust Ak

 
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[2010] NZEMPC 142

IN THE EMPLOYMENT COURT AUCKLAND

ARC 1/10

ARC 9/10

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
Appearances:

Mr N Wang in Person

Ms E Wilkinson, Representative for the Defendant

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).

The issues were: whether the redundancy was genuine; whether the failure to consider redeployment in the context of the test of justification under s103A Employment Relations Act (test of justification) lead to the conclusion that the Trust failed to act as in a way that a fair and reasonable employer would have done; whether W had contributed to the issue by refusing to renegotiate his job description and refusing to apply for the new position; whether reinstatement was an appropriate remedy; and whether an award of compensation should be given, if so whether it should be reduced under s124 Employment Relations Act 2000 (remedy reduced if contributing behaviour by employee) because of contributory conduct.

Held: The need for the redundancy was genuine and had been precipitated by W's refusal to co-operate with the Trust in negotiating the duties required for the financial administration of the Trust. W however should have been given a copy of the Treasurer's Review Report as part of the consultative process. If that had occurred it was possible that W might have seen there was a genuine need for him to agree to a review of his duties and overall position which may in turn have led him to simply being redeployed.

The Trust had been under an obligation to consider alternatives to making W redundant. The Trust had conceded that W was able to perform the duties of the position and had encouraged him to apply which W had misguidedly refused to do. W should have been offered the position by way of redeployment rather than having his previous position terminated and requiring him to apply for the new position once it had been advertised. The failure to consider redeployment in the context of justification under s103A ERA meant that the Trust had failed to act in a way that was fair and reasonable. The Trust had not acted properly in taking the view that it had to advertise the position. There was no evidence that it would not have been a responsible exercise of its discretion to simply offer the role to W.

Reinstatement was not an appropriate remedy. W's allegations of discrimination based on his ethnicity were unfounded and the proceeding was dismissed. Reinstatement would have provided considerable relationship difficulties between W and the remaining employees and such unfounded allegations would have caused extreme difficulties in W resuming employment with an entity of the kind that the Trust was. Also since the role of finance manger had been filled, further substantial restructuring had taken place so that the three main management roles were now carried out as part-time positions on a job sharing basis. Having W reappointed in a full-time position as finance manager would not be appropriate given the current management structure. Reimbursement for lost wages and compensation for humiliation, loss of dignity and injury to feelings was therefore the appropriate remedy.

W had attempted to mitigate his position by attempting to obtain alternative employment. However, W had been unreasonable in the way he had dealt with the Trust, which had contributed to the need for restructuring and the intolerable position that had arisen. W had also failed to apply for the new position, however that had occurred after the Trust's termination and was not a breach of W's obligation to mitigate, nor was it contributory behaviour.

W was entitled to reimbursement of 6 months' salary, compensation for loss of Kiwisaver employer contributions and compensation for humiliation, loss of dignity and injury to feelings pursuant to s123(1)(c) ERA (remedies) which were reduced by 50% to $5,000.00 for his contributing behaviour.

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...

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