Oracle consultant loses bid to return to work

Ex-employee must wait until main case against company is heard, ERA rules

A former Oracle principal consultant has failed in a bid for interim reinstatement in the role he held, which was disestablished in February.

The consultant was employed by Oracle from 2007 until February this year as a principal consultant. His position was disestablished in February and in March he lodged several claims against Oracle with the Employment Relations Authority, including unjustified dismissal.

The ERA is to carry out a full investigation into the claims in June, and he sought interim reinstatement to his former role until the investigation is complete and his case heard.

In a determination issued on May 2, ERA member Alastair Dumbleton ruled against the application for interim reinstatement, noting “The Authority is satisfied that the balance of convenience lies in not ordering interim reinstatement, but in providing reasonably promptly a full investigation of the substantive claims including unjustified dismissal.”

Dumbleton noted that changes to the Employment Relations Act effective from April 1 shifted away from reinstatement as “the primary remedy” in personal grievances, to requiring reinstatement if it is practicable and reasonable.

The substantial case that will be heard by the authority after the investigation involves a claim by the consultant of unjustified dismissal for which he seeks permanent reinstatement, reimbursement of lost salary and payment of expenses, and compensation for $15,000 for loss of dignity, humiliation and stress caused by his unjustified dismissal.

He also seeks $15,000 for compensation for unjustified disadvantage in his employment, and penalties for breach of the employment agreement and good faith obligations under the Employment Relations Act.

The consultant claims that the elimination of the principal consultant role that he held wasn’t a genuine redundancy, that he had suffered discrimination at the hands of Oracle employees and that a request for confidentiality when he raised issues about the way certain aspects of Oracle’s New Zealand operations were conducted to an overseas Oracle vice president was ignored.

In determining the consultant’s application for interim reinstatement until the substantial case is heard, Dumbleton noted there are four tests or questions the Authority must consider; first, Is there an arguable case?; second, Where does the balance of convenience lie?; third, Are there other adequate remedies available?; and fourth, Where does the overall justice of the case lie?

Regarding “Is there an arguable case?”, Dumbleton noted: “At best there is only a weakly arguable case that his dismissal resulted from something other than a situation of genuine redundancy”, and “The evidence in this case indicates that Oracle’s decision was made with reference to the position of employment held and not with reference to him personally as an individual”.

He noted earlier in the determination: “For Oracle several witnesses in their affidavits gave consistent evidence of consideration that had been given to restructuring by the company towards the end of 2010, because of a fall off in work available for employees in positions such as the consultant held.

“The company evidence is that the position was disestablished following a major downturn in needs from clients both present and future.”

Regarding “Where does the balance of convenience lie?”, he concluded: “The Authority is satisfied that the balance of convenience lies in not ordering interim reinstatement, but in providing reasonably promptly a full investigation of the substantive claims including unjustified dismissal.”

In regards to, “Are other adequate remedies available?”, he noted that the remedies available under the substantive claims he is pursuing would provide adequate remedies.

As for, “Where does the overall justice of the case lie?”, Dumbleton concluded: “I find that the overall justice of the case lies in declining the application for interim reinstatement.”

* A follow-up meeting scheduled for June 3 was cancelled.

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