Boating firm 'at fault' in sacking

Last updated 13:34 25/11/2013

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A Nelson firm which made a worker redundant without following a fair process must pay him $10,000.

Totally Boating 2004 Ltd laid off outboard technician Wayne Woodward in March last year after he returned from a forced holiday.

Woodward, represented by lawyer Anjela Sharma, took his case for unjustified dismissal to the Employment Relations Authority.

The authority was told that the business owner Michael Dobson insisted Woodward take two weeks annual leave despite him being unhappy about it because he had planned to take leave in April.

Dobson said he had told Woodward that he needed to take his annual leave within the year or risk losing it.

When Woodward returned from leave he was given a letter telling him it was proposed that he would be made redundant and a consultation would be held on March 23.

Dobson, represented by lawyer David Ballantyne, gave evidence that his business had experienced a significant downturn in trade and had taken a number of steps including closing its Motueka branch in 2011 but was still carrying more employees than required.

Authority member David Appelton said he was satisfied that there was a genuine and pressing need for the company to further reduce its costs so as to avoid further significant loss.

"I do not accept that Mr Woodward's dismissal was for some reason other than for redundancy or that the reason of redundancy was a sham," he said.

However, the process followed in concluding that Woodward should be made redundant was not what a fair and reasonable employer could have done.

Appelton said the consultation must occur at the proposal stage and before a settled decision was made that an employee would be dismissed for redundancy. That meant that all four technicians should have been consulted with about the possibility of redundancy before the selection process was completed.

Dobson also did not consult about the selection criteria with Woodward.

"It was perfectly possible that, had Mr Dobson discussed the way he meant to score the staff with Mr Woodward first, Mr Woodward could have persuaded him to adopt a different approach, which may have resulted in a less disadvantageous score."

That selection process included scoring the technicians on the number of comebacks, which were problems with boats which had to come back to the workshop.

Appelton said the failure to give full details to Woodward in advance of the March 23 meeting of each of the comebacks, some of which dated back four years, was a serious procedural flaw.

"Mr Woodward had a fundamental right to not only full information in front of him but also sufficient time to think about each one of these comebacks and to be given the opportunity to make informed representations about each."

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The company had also failed to give him financial information to support the contention that it needed to lose one technician position and to discuss whether there were alternatives to dismissal.

Appelton concluded, but for the procedural flaws, Woodward's dismissal through redundancy would have been justified.

Woodward said he felt his redundancy was effectively a done deal, and that he felt powerless and that there was nothing he could have said to have changed Mr Dobson's mind from the outset.

Appelton ordered the company to pay $10,000 compensation for humiliation from the procedural failings in the dismissal.

He also found that Woodward suffered an unjustified disadvantage in his employment when he was forced to take leave at a time he did not wish to.

Totally Boating breached the Holidays Act in not giving him the required 14 days notice, and was ordered to pay a further $500, and two weeks salary for the pay he would have earned during a proper consultation process.

- The Nelson Mail

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