Posted on: Mar 22, 2013
It is worth remembering that an employer who defends a claim of unjustified dismissal by arguing the dismissal was justified because the employee’s position had become redundant cannot then claim that any award for unjustified dismissal should be reduced for contributory conduct by the employee.
In Ross v Midtown Medical Ltd, the employer might have fared better if it had not raised redundancy as a justification for dismissing the employee. The employer was facing fiscal pressure and said it asked the employee to consider a temporary reduction to her working hours. It said the employee refused to engage with it and cried and became agitated. Notes made by the employer confirmed that it did attempt to discuss the matter with the employee on several occasions. The parties eventually met and the employee had a legal adviser. During the meeting the employer said the only option was to reduce her hours. It said it did not need a full-time employee and “it’s legally called redundancy”. The employee asked when did the redundancy start and the employer said “it applies from now”. The employee began to swear, tore up letters she had just typed and stormed out of the room never to return.
The employee brought a personal grievance claiming unjustifiable dismissal. The employer denied it had dismissed her but said, if it had, then her dismissal was justifiable because her position was redundant.
The Authority found that the employee had been unjustifiably dismissed. It said the dismissal could not be justified on the basis of redundancy because the employer had failed to consult adequately with the employee. It said the employer had breached its obligation to put the employee on notice that by continuing with her refusal to respond she was running the risk a decision would be made without her input. The Authority awarded the employee lost wages and $5,000 compensation for hurt and humiliation. The Authority said at [58]:
“The defence was redundancy. Redundancy implies no fault, therefore the answer [to the question of whether the employee had contributed to her demise] must be no”.
It is possible, on the facts, that if the employer had merely denied dismissing the employee and offered no justification the employee’s remedies would have been reduced for contribution.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
