Employer Found Not to Have Used Religion as Selection Criteria for Redundancy

A man alleged he was selected for redundancy from his job at an Auckland glass company because he was not a member of the Brethren Church.

Kevin van der Merwe raised a personal grievance with the Employment Relations Authority (ERA) for unjustified dismissal from Glasshape Ltd where he was employed as Production Manager in November 2012.

Mr van der Merwe said his role was not superfluous, there was no consultation before the redundancy decision was made and he was selected because of his non-membership of the Brethren Church.

In 2014, there was an increase in production volume which resulted in the workload for the Production Manager being too much for one person.

Glasshape engaged the services of consultant Simply Lean Business Solutions to review the lean systems in place. The consultant also provided a report suggesting a review of the company’s structure to include a couple of Lean Team Leaders and a standardised work procedure for team leaders.

Mr van der Merwe met with human resources manager Clint Brickhill and managing director Rick Forrest, where changes to his role were discussed. Following this meeting Glasshape started a formal process to consult with Mr van der Merwe about his job. The position of Production Manager was proposed to be disestablished and new positions of Production Administration Assistant and Lean Team Leader were proposed to be created. Another option was to maintain the status quo.

The same day that Mr van der Merwe received the proposal to restructure, he sought time off because he had arranged interviews with potential employers. His email also noted he would not be applying for either of the new positions.

A few days later Mr Forrest made the decision to go ahead with the restructure and disestablished the Production Manager position and created the two new positions. Mr van der Merwe was offered the Lean Team Leader position on the same terms as his current role with a modified job description. His advice was also sought about whether he would express an interest in a sales team role.

However Mr van der Merwe advised Glasshape by email that it was time for him to move on and he wished the company well. The next day he emailed Mr Forrest saying he had no option but to resign from his current role.

Authority member Mr T G Tetitaha said “The genuineness of a redundancy remains a key focus. Once that is established if an employer concludes that the employee is surplus to its needs the Authority is not to substitute its business judgement for that of the employer.”

Mr Tetitaha accepted Mr Forrest’s evidence that he wished to keep Mr van der Merwe and that he was attempting to remove menial administrative planning tasks to reduce Mr van der Merwe’s workload which he resisted.

The Authority found no evidence that membership or not of the Brethren Church was a factor which resulted in his selection for redundancy. This was specifically denied by Mr Forrest in a consultative meeting which Mr van der Merwe accepted under cross examination that that part of the meeting was correctly recorded in the minutes.

Mr van der Merwe’s application for a personal grievance was dismissed. Costs were reserved.