2

To the above-named defendant And To the Registrar of the Employment Court

Challenge to objection to disclosure

I, the above-named plaintiff, challenge the objection to disclosure served on me by the above-named defendant. I apply for an order (a) (b) declaring the objection to be ill-founded; and directing that the document (or class of documents) be disclosed.

Grounds

This challenge is based on the following grounds: Introduction 1. On 21 March 2013 the plaintiff served Form 6 Notice Requiring Disclosure to the defendant. 2. On 2 April 2013 the plaintiff served an amended Form 6 to the defendant, seeking disclosure of relevant documents as defined in Regulation 38 of Employment Court Regulations 2000. Attached marked A is a copy of Amended Form6 served by plaintiff on the defendant. 3. On 8 April 2013 the defendant served Form 7 Notice of Objection to Disclosure. The defendant had objected to disclosure of the documents numbered 2 to 13 from the Plaintiffs Amended Notice Requiring Disclosure. Attached marked B is a copy of Form 7 Objection to Disclosure served on the plantiff by defendant. Facts Identification of RIF Candidates 4. On 25 January 2010, Megali Delfrosse (Oracles corporate office Human Resources Director for Asia Pacific) sent an email to all the regional Vice Presidents of Oracles Consulting Services department to start the procedure for identifying employees whose positions could be potentially disestablished. The employees that occupied these positions were called

redundancy in force (RIF) candidates.

5.

This email from Megali Delfrosse had the following information in it: (a) An attached document named Plan 10 presentation which detailed the guidelines and process to identify RIF candidates.

(b)

An attached document to list down the employees affected by RIF, with their positions and justification of the restructure based on the following criteria: (i) Loss or downturn of business

(ii)

Reorganization / organizational change

(iii)

Consolidation / rationalization of functions

(iv)

Elimination of position

(c)

Instructions that disestablishment of positions identified as RIF will be subject to Oracles corporate approval, and affected employees must not be notified until confirmation on this approval.

(d)

This email was also copied to Steve Simek (Oracle Vice President ANZ Region for Consulting Services) and Casey Poon (Senior Vice President Asia Pacific Region for Consulting Services).

6.

On 29 January 2010, Steve Simek forwarded this email (from Megali Delfrosse) to defendant Elizabeth Mccusker and other Practice Directors from Australia with his instructions. This email from had the following information in it: (a) Instructions from Steve Simek to the Practice Directors to follow the specific guidelines as per an attached document to identify the RIF candidates.

(b)

An attached document which lists down the specific guidelines to identify the RIF candidates. It is unclear whether this attached document was the same Plan 10 presentation, which was earlier

sent by Megali Delfrosse to Steve Simek. 7. Elizabeth Mccusker then sent an email to Steve Simek on 1 February 2010 which contained an attachment with the list of RIF Candidates from Oracle Consulting Services New Zealand Oracle (including the names and positions of identified employees).

(a)

For each of the identified RIF candidates, Elizabeth Mccusker gave the justification for restructure as loss or downturn of business.

(b)

Elizabeth Mccusker stated that if the forecast project work progresses as per the plan, then the identified RIF candidates will be required for working on those projects, and in that case there will be no disestablishment of those positions.

8.

During 2 February to 8 February 2010, Steve Simek had further discussions with Elizabeth Mccusker on the proposed RIF list. And based on this discussion, he then instructed her to amend the RIF list to include the following columns: (a) (b) (c) Key Skill of the consultant The opportunity targeted for, and The trigger point (that is the month and quarter) by which a decision will be made

9.

On 8 February 2010, Elizabeth Mccusker sent the amended RIF list to Steve Simek, which now included the above mentioned additional columns and the experience each employee had in those skills.

10.

This RIF list identified Kabeer Khan, along with atleast four of his New Zealand based colleagues, for RIF consideration.

11.

The plaintiff got to know about the details of the selection of candidates for RIF list as a part of proceedings in the Employment Relations Authority. The defendant provided emails referred above in paragraphs 4 to 9 but did not provide the attachments associated with them.

12.

Under Form 6 (Amended) Notice Requiring Disclosure, these documents disclosures have been listed from document numbered 3(a) to 3(d).

13.

During this time the defendant did not share the following information: (a) The details about process of selection of RIF candidates, including the date on which this process was started. (b) The criteria using which Kabeer Khan and his colleagues were selected and placed into the RIF list. (c) The criteria using which Elizabeth Mccusker had identified the Key Skills and experience of the employees who were placed into the RIF list. (d) The identities of candidates and the opportunities targeted for the candidates who were placed on the RIF list from New Zealand. (e) The trigger point (that is the month and quarter) by which a decision will be made for disestablishment of candidates identified in the RIF list. (f) Information in the minds of the selection panel members and Elizabeth Mccusker which had not been committed to writing including: (i) The selection panel members and Elizabeth Mccusker views derived from reading the candidates curricula vitae such as their relative strengths and weaknesses, their suitability for alternate positions and their ranking. (ii) The content of the discussion by selection panel members, Steve Simek and Elizabeth Mccusker which had led to Kabeer Khan on the list of RIF candidates.

14.

At this time Roger Hooper worked as an acting Practice Manager, that is, during the period from 26 November 2009 to 18 June 2010, and directly reported to Elizabeth Mccusker.

China Project 15. On 5 February 2010, Roger Hooper sent an email to Kabeer Khan for a China based project opportunity.

16.

In the subsequent discussions with Roger Hooper between 5 March and 8 March 2010, Kabeer Khan had made it clear that his knowledge in the required skills was mainly from self-study only and he had no experience in the skills required for working on this the China project.

17.

But Roger Hooper had advised him to customize his CV to show these skills and related experience.

18.

Subsequent to that Kabeer Khan expressed his reservation of not having the relevant skills and his preference to live in New Zealand because of personal reasons.

19.

When Elizabeth Mccusker advertised the position of Project Manager in 8 March 2010 practice meeting, Kabeer Khan had taken that opportunity and applied for it. This was one way which could have helped him to remain in New Zealand.

20.

Following the plaintiffs application for the role of project manager, the defendant Elizabeth Mccusker said that the advertised position was Programme Director for a project for Housing New Zealand Corporation and not Project Manager.

21.

Subsequent to that she had a meeting with the plaintiff on 12 March 2010. During this meeting she gave the following reasons for declining the him opportunity to work in the area of Project Management:

(a)

She did not have sufficient work for the existing project managers in Oracle, and would need to utilize them first prior to adding more team members in Project Management team. On the contrary, at this time three out of four project managers in Oracle were already working on revenue generating projects.

(b)

And to be able to work in a project management role, she asked Kabeer Khan to submit his application for Oracles internal APAC Project Manager Certification (Oracle PM Certification) for

review and authorization. (c) For the skills required for working on China Project, she said that he must pick up the skills on the job.

22.

Contrary to what was said by Elizabeth Mccusker about the available work for Project Managers, in the subsequent month of April 2010, the defendant appointed plaintiffs colleague Ian Thompson to work as a Project Manager on a project with New Zealand Police. The defendant could also manage to find work for rest of the Oracles project managers.

23.

Elizabeth Mccusker was aware that there will be project work in the pipeline for New Zealand Police and Housing New Zealand Corporation, and a large number of New Zealand based employees will be utilized in them.

24.

But this information was not shared with the plaintiff in 12 March 2010 meeting with Elizabeth Mccusker.

25.

Shortly after the meeting, Roger Hooper called Kabeer Khans mobile phone and threatened that Kabeer Khan will get fired if he does not accept the China assignment. For the skills required for China assignment, he asked him to learn it on the job.

26.

It appears that Roger Hooper had the knowledge that Kabeer Khan was on the RIF candidate list, and due to which he issued the threat of getting him fired if China project was not accepted.

27.

Because of the threat of getting fired, Kabeer Khan had accepted going to China. Job Applications - Required Skills and Expertise Level of those Skills

28.

The defendant Elizabeth Mccusker started retaliating ever since the plaintiff submitted his analysis of Oracles customer care survey, in which he reported that project mis-management was one of the biggest reason for customer dissatisfaction for Oracles New Zealand and Australian customers. And subsequent to this, it resulted in Elizabeth Mccusker taking over the survey analysis from plaintiff on 22 March 2010.

29.

The retaliation from Elizabeth Mccusker and Roger Hooper increased multiple folds after Kabeer Khan sent email with his suggestions for

business improvement to Casey Poon (Oracle Senior Vice President APAC) on 26 March 2010. This has been further explained in paragraph 37 to 43 of the Statement of Claim.

30.

Around the same time, that is during the months from March 2010 to July 2010, Kabeer Khan had applied for a total of four roles but the defendants Elizabeth Mccusker and Roger Hooper kept denying his job applications with different reasons or did not consider it at all.

31.

For example, as stated in paragraph 41(r) of Statement of Defense, on 4 May 2010, Roger Hooper declined Kabeer Khans application to work as Procurement Lead for a project for Housing New Zealand Corporation. And the reason given by him was that Kabeer Khan did not had the necessary skills, expertise-level of those skills and relevant experience to work on that role. On the contrary, during that time Kabeer Khan was already working in a similar role in China project.

32.

The defendant then employed an external contractor to work as a Procurement Lead.

33.

Subsequent to that, during the months from May 2010 to January 2011, Kabeer Khan had several email communication with Roger Hooper in relation to new job requirements for New Zealand based projects.

34.

In response Roger Hooper said that the four new requirements were dependent upon signing of a project for Housing New Zealand Corporation, and it was expected that these requirements will be for skilled resources in the area of Hyperion and BI Apps.

35.

On the contrary, during this period the defendant: (a) Had communicated about the new positions only after a candidate got selected. For example, on 14 June 2010, in an internal practice meeting, Elizabeth Mccusker announced that all the four new positions listed on Oracles iRecruitment website were under offer. (b) Had hired atleast two new employees which were previously known to Elizabeth Mccusker. Both of them were deputed to work for a project for Housing New Zealand Corporation.

(c)

Had employed a number of external contractors and Oracles overseas employees on New Zealand based projects. Majority of them were deputed to work for a project for Housing New Zealand Corporation.

36.

In summary, the reasons given by defendant for declining plaintiffs job applications were based on plaintiffs skills, the expertise level of those skills, and the experience he had on those skills. The defendants continuously used the same criteria to determine the outcome of plaintiff job applications, which was used in identifying plaintiff on RIF list on 8 February 2010, for assigning New Zealand based project work to external contractors and overseas employees.

Disestablishment Notice and Redundancy 37. During the month of January 2011, there were a total of three Oracle employees who were working on China based project assignments. These were Kabeer Khan, and his other colleagues David Lin and Judith Lines. 38. Kabeer Khan had a meeting with Roger Hooper and Mitzy Kearney on 6 January 2011. After the meeting, Roger Hooper had written to China project manager to know when Kabeer Khans assignment will complete. 39. On the same day, the China project manager replied and confirmed that Kabeer Khan will be released from China assignment on 31 January 2011. 40. On the contrary, it was on 18 January 2011 that Roger Hooper received the confirmation for David Lins release from China assignment. 41. Roger Hooper then assigned David Lin to work on a project for Housing New Zealand Corporation. The requirements for this work or the selection criteria for assigning David Lin were not discussed with Kabeer Khan at all. 42. The standard procedure in Oracle when a project work requirement is communicated to the practice manager is that he sends a common email to employees of consulting business for the clients requirement. This is followed by a one-on-one discussion for the employee skills and experience. And depending on the availability of employee skills and the requirement, the practice manager then advices consultants to customize their CV. 43. On the contrary, in paragraph 52 (first and second point) of Statement of

10

Defense, the defendant states that this process described by the plaintiff is out of date and has not been followed since late 2009. But the fact is that the defendant never communicated this changed process to the plaintiff. 44. On 21 January 2011, Roger Hooper invited Kabeer Khan to attend a teleconference meeting scheduled for 25 January 2011. 45. During the teleconference on 25 January 2011 (also attended by Human Resources managers Catherine Reynolds and Mitzi Kearney), Roger Hooper told Kabeer Khan that: (a) To date Oracle has not received any project leads or deals where Kabeer Khans skills can be utilized; (b) It was a situation that Oracle do not have a role which is suitable to Kabeer Khans skills to return to when released from the project in China; (c) Both Elizabeth Mccusker and Roger Hooper had met with and consulted the business leaders to determine future needs, and Oracle have no future needs in the pipeline; (d) The proposal was developed as a result of the significant downturn in client needs and prospective clients, with no requirements in Kabeer Khans area of expertise now or in the pipeline; (e) Subsequent to this, Roger Hooper gave a proposed

disestablishment notice to Kabeer Khan, and then invited him to provide suggestions and alternatives by 2 January 2011, to prevent the disestablishment. 46. The proposed notice of disestablishment was given a day before Kabeer Khans departure from China to New Zealand. And Roger Hooper declined Kabeer Khans request for extending the date of providing suggestions and alternatives from 2 January to 4 January 2011.

47.

At this time, Roger Hooper did not provide the following to Kabeer Khan:

(a)

He did not provide any information about the RIF process or details about the selection panel and its members.

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(b)

He did not provide any criteria or scale or assessment method based by which RIF candidates were selected.

(c)

Did not explain whether other candidates were selected in the RIF list, and the reasons for Kabeer Khan as the only one selected for proposed disestablishment from the pool of all consulting services department employees.

(d)

Whether Roger Hooper received approval from Oracle corporate regarding the final proposal to disestablish Kabeer Khans position. This was the part of the process which Megali Delfrosse had earlier communicated to Oracles consulting managers and instructed them to follow it.

(e)

The description of work undertaken by Oracles Consulting Services department employees on the New Zealand based projects.

(f)

Any information regarding plaintiffs colleagues namely David Lin and Judith Lines, who were also working in China based projects.

48.

On 1 January 2011, Kabeer Khan sought information from Roger Hooper for next twelve weeks resource requirements, and the description of the work which each of the external contractors were doing on New Zealand based projects. But these details were not provided by him by the defendant.

49.

Out of a total of thirteen suggestions provided by Kabeer Khan on 2 February 2011 (to prevent disestablishment of his role), Roger Hooper considered only four.

50.

During 2 February to 9 February 2011, neither Roger Hooper nor Catherine Reynolds provide any feedback to Kabeer Khan regarding the suggestions he gave for preventing his disestablishment.

51.

In the final meeting of plaintiff with Roger Hooper on 9 February 2011: (a) Roger Hooper started the meeting by saying that there was restructuring done due business downturn and because of which there was no work available for Kabeer Khan in New Zealand. In

12

the next sentence he said that Kabeer Khan will be made redundant effective immediately from 9 February 2011.

(b)

The situation in New Zealand has not changed for requirements in his skills ever since Kabeer Khan was sent to China in March 2010.

(c)

In comparison to the employed external contractors, Roger Hooper said that Kabeer Khan had partial skills required for working on New Zealand based projects. And the defendant made this decision based on plaintiffs skills, the expertise level of those skills, and the experience he had on those skills.

(d)

And considering the requirements and work in the pipeline, there were no work suitable for Kabeer Khan.

52.

The plaintiff did not get an opportunity to comment before the final decision of redundancy was implemented.

53.

The defendant did not share any information about Oracles overseas employees at all. Kabeer Khan got to know about it as a part of proceedings in the Employment Relations Authority.

54.

At the time of final meeting of plaintiff with defendant Roger Hooper on 9 February 2011, the plaintiff had the following information:

(a)

The names of the significant projects undertaken by Oracle in New Zealand

(b)

The names of the external contractors engaged by Oracle in New Zealand based projects.

(c)

The names of Oracles Consulting Services department employees working on the New Zealand projects.

55.

At that time, the plaintiff did not have any of the following information:

(a)

The selection criteria. That is, the process of selection of candidates for Redundancy In Force (RIF) and proposed disestablishment of their position, including exact date on which

13

these processes were commenced. (b) Document Number 11(a), Form 6

The identifies of other candidates who were placed on the RIF list and/or selected for proposed disestablishment of their position from New Zealand, including their roles within Oracle New Zealand. Document Number 11(g), Form 6

(c)

The individual assessment sheets for the candidates selected for RIF list and/or proposed disestablishment by Roger Hooper. Document Number 11(f), Form 6 Hooper and the selection panel members

(d)

Roger

recommendations for omitting other candidates from RIF list and/or proposed notice of disestablishment. (e) Document Number 11(b), Form 6

The selection criteria using which Kabeer Khans position was selected for proposed disestablishment. Document Number 11(c), Form 6

(f)

Details of skills, expertise-level of skills and experience of Consulting Services employees, including that of David Lin and Ian Thompson. Document Number 11(d), Form 6

(g)

The comparison sheet detailing the skills, expertise level of those skills and experience of Consulting Services department employees, with that of externally employed contractors and overseas employees. Document Number 11(e), Form 6

(h)

Information in the minds of the selection panel members and Roger Hooper which had not been committed to writing including:

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(i)

The selection panel members and Roger Hooper views derived from reading the candidates curricula vitae such as their relative strengths and weaknesses, their suitability for alternate positions and their ranking.

(ii)

The content of the discussion by selection panel members and Roger Hooper which had led to Kabeer Khan on the list of RIF candidates and/or selected for disestablishment of his position.

Document Number 11(h), Form 6

(i)

The description of work undertaken by Oracles Consulting Services department employees on the New Zealand based projects.

(j)

The defendant Roger Hooper did not provided any information regarding the project work requirement for Housing New Zealand, in which David Lin (another employee in Oracle New Zealand Consulting Services) was placed, and the selection criteria for embarking David Lin for that work.

(k)

The detailed description of the skills, expertise-level of those skills and the description project work undertaken by New Zealand based external contractors employed by Oracle. Document Number 6, Form 6

(l)

The detailed description of the skills, expertise-level of those skills and description of project work undertaken by Oracles overseas employees, for working on New Zealand based projects. Document Number 7, Form 6

(m)

The defendant did not share any information about overseas employees working on New Zealand projects, and the plaintiff got to know about them as a part of proceedings in the Employment Relations Authority.

(n)

Details of the project work in the pipeline for the projects done for Housing New Zealand and Victoria University Wellington.

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Document Number 9, Form 6

Documents numbered 2 to 7, 11(a) to 11(h) and 13(a) to 13(d) of Form6 (Amended) Kabeer Khan repeats paragraphs 4-55 56. The defendant followed the Plan 10 presentation sent by Megali Delfrosse (which detailed the guidelines and process to identify RIF candidates) to identify the RIF Candidates in the month of February 2010.

57.

On 8 February 2010, Elizabeth Mccusker sent the final RIF list to Steve Simek, which now included the key skills of the consultant, the experience each had in those skills and the trigger point by which a decision will be made. And for each of the identified RIF candidates, Elizabeth Mccusker gave the justification for restructure as loss or downturn of business.

58.

The defendant continuously used the same method for determining plaintiffs skills, the expertise level in those skills and the experience he had in those skills, to make decisions for engaging plaintiff. Specifically: (a) As stated in paragraph 31(a) of Statement of Defense, on 12 March 2010 Roger Hooper told Kabeer Khan that the plaintiffs role was project related that the defendant could not keep his position indefinitely if there continued to be no local work in the pipeline for his skill-set.

(b)

In the months from March 2010 to July 2010, Kabeer Khan applied for a total of four times for various roles in Oracle. But the defendant for declined a number of his job applications for New Zealand based projects and gave the reason as his low expertise level of his skills and the experience he had in them. Subsequent to that, the defendant then engaged external contractors and overseas employees to work on them.

(c)

In the teleconference with Roger Hooper with Kabeer Khan on 25 January 2011, he said that Oracle do not have a role that is suitable to Kabeer Khans skills to return to when released from project in China.

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59.

Therefore the situation in New Zealand had not changed for requirements in his skills ever since Kabeer Khans name was placed on the RIF list in February 2010, when Oracle was downsizing and selecting employees for dismissal on grounds of redundancy.

60.

Under paragraph 61(f) of Statement of Defense, the defendant admitted that Roger Hooper did not provide the plaintiff with details of external or overseas contractors. And according to defendant .they were working and providing services outside of plaintiffs skill-set and experience ..

61.

Hence the primary factors for placing an employee on RIF list, and engaging external contractors or overseas employees in New Zealand based projects were:

(a)

the employees skills;

(b)

his expertise-level in those skills;

(c)

the experience he had on those skills; and

(d)

the current and future pipeline project work which matches those skills.

62.

As a Full Court of the Employment Court held in Vice Chancellor of Massey University v. Wrigley and Kelly [2011] NZEmpC 37 at para.[62]:

[62]

What is within the scope of s 4(1A)(c) in any given case

will, however, depend on the particular circumstances of the case. The starting point must be the nature of the decision which the employer proposes to make. For example, if the employer has restructured its business and is deciding whether an employee whose position is disestablished is suitable for an alternative position, what will be relevant is information relating to that persons attributes and to the new position. On the other hand, if the employer is downsizing and selecting employees for dismissal on grounds of redundancy, the process is likely to be comparative one and information about the other candidates will also be relevant. In both cases, the perceptions and opinions of

17

those involved in the process leading to a decision will be relevant.

63.

In the present case, Oracle did not acted in good faith and had failed to comply with s4(1A)(c) of the Act by not providing with all of the information relevant to the decision about Kabeer Khans future employment. The defendant continuously used the same method, which was used in to place him on RIF list in February 2010, for determining plaintiffs skills, the expertise level in those skills and the experience he had in those skills, and then to make subsequent decisions for engaging plaintiff in New Zealand based projects.

64.

The defendant continuously employed external contractors and Oracles overseas employees on New Zealand based projects while the plaintiff was in employment, and even after the plaintiff was made redundant on 9 February 2011.

65.

Out of the seven external contractors employed, the plaintiff had skills which matched with atleast four of them.

66.

Out of the four overseas employees employed, the plaintiff had skills which matched with atleast two of them. The plaintiff had previously worked with them on other Oracle New Zealand based projects during the years 2008 to 2009, and therefore had awareness about their skills.

67.

As a Full Court of the Employment Court held in Vice Chancellor of Massey University v. Wrigley and Kelly [2011] NZEmpC 37 at para.[47}: [47] More informed employee involvement will promote better

decision making by employers and greater understanding by employees of the decisions finally made. That will avoid or reduce the sense of grievance which may otherwise result and thereby reduce the incidence of personal grievances and other employment relationship problems. [48] Recognition of the inequality of power in employment relationships is also directly relevant. When a business is

restructured, the employer will, in most cases, have almost total power over the outcome. To the extent that affected employees

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may influence the employers final decision, they can only do so if they have knowledge and understanding of the relevant issues and a real opportunity to express their thoughts about these issues. In this sense, knowledge is the key to giving employees some measure of power to reduce the otherwise overwhelming inequality of power in favour of the employer. [49] These broad objects are reinforced by the more general provisions in s.4. As an aspect of the duty of good faith, s 4(1A)(b) requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, amongst other things, responsive and communicative. The obligations imposed by s 4(1A)(c) amplify the general requirement and the specific circumstances in which it applies. It follows that the obligation to provide access to information, relevant to the continuation of the employees employment must be discharged in a manner which is active, constructive, responsive and communicative.

[62]

What is within the scope of s 4(1A)(c) in any given case

will, however, depend on the particular circumstances of the case. The starting point must be the nature of the decision which the employer proposes to make. For example, if the employer has restructured its business and is deciding whether an employee whose position is disestablished is suitable for an alternative position, what will be relevant is information relating to that persons attributes and to the new position. On the other hand, if the employer is downsizing and selecting employees for dismissal on grounds of redundancy, the process is likely to be comparative one and information about the other candidates will also be relevant. In both cases, the perceptions and opinions of those involved in the process leading to a decision will be relevant.

[63] Although it was not in dispute between the parties, we comment briefly on the nature of information potentially within the scope of s 4(1A)(c). It must include not only information which is written down or otherwise recorded but also information in the minds of people. Otherwise, if any relevant information

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was not recorded, the purpose of the legislation would be defeated. In this regard, we note the reluctance of the Authority in this case to ?reach into the minds of the selection panel members?. The fact that information is not recorded and held only in the minds of persons may make it more difficult to retrieve and less certain in its accuracy but does not affect whether it is relevant for the purposes of s 4(1A)(c).

68.

Applying the same principle in the present case, had the plaintiff got the details of the work done by external contractors and overseas employees on New Zealand based projects, then he could have worked with defendant to identify the work in which he had the relevant skills, to potentially replacing one of them.

69.

The paucity of the information provided by Oracle actually precluded any prospect of a genuine engagement between the parties.

70.

Even though the plaintiff specifically requested, the defendant did not provide description of work that each of the external contractors were doing or the planned work in the pipeline for subsequent twelve weeks.

71.

If the defendant acted in good faith, as the statute obliges them to, the practical difficulties faced by plaintiff would not have occurred. As in Vice Chancellor of Massey University v. Wrigley and Kelly [2011] NZEmpC 37 at para.[47}: [57] An employer who swamps its employees with marginally

relevant information will not be acting constructively as it is required to do by s(1A)(b). Between parties acting in good faith, the process of providing access to information may also be a dynamic one. An employer will normally take the initiative by providing employees with the information it things is most relevant and helpful. If employees request access to further information, the employer will then provide that to the extent it is relevant to the decision the employer proposes to make. 72. The purpose of s 4(1A)(c) is to be found in paragraph (ii) which requires the employer to give the employees an opportunity to comment before the decision is made. That opportunity must be real and not limited by the extent of the information made available by the employer.

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73.

Applying the principle of s 4(1A)(c)(ii) to the present case, in the final meeting with defendant Roger Hooper on 9 February 2011, he started it by saying that there was restructuring done due business downturn and because of which there was no work available for Kabeer Khan in New Zealand. In the next sentence he said that Kabeer Khan will be made redundant effective immediately from 9 February 2011.The plaintiff did not get an opportunity to comment before the final decision of redundancy was implemented.

74.

Further in Vice Chancellor of Massey University v. Wrigley and Kelly [2011] NZEmpC 37 at para.[129]: [129] employers have other obligations to provide employees

with access to information. One we have already mentioned is that a fair and reasonable employer will not rely on information adverse to an employee to dismiss him or her without making that information available to the employee for comment. That obligation is part of wider duty of good faith embodied in s 4 of the Act and particularized in the 2004 amendments.

[132]

why an employer who would be oblige to disclose in

personal grievance proceedings all relevant information after dismissing an employee, should not disclose it in the course of the decision-making process and thereby give the employee an opportunity to say why he or she ought not to be dismissed. In this regard, it is significant that one of the primary objects of the Act is reducing the need for judicial intervention through the promotion of good faith. 75. Applying the principle of s 4(1A)(c) to the document disclosures in the present case, the documents numbered 2 to 7, 11(a) to 11(h) and 13(a) to 13(d) in Form-6 were relevant to the continuation of the plaintiffs employment. And given the fact that the plaintiff was the only candidate who was selected for disestablishment and was made redundant, the disclosure of disputed documentation should have been provided to the plaintiff to give him an opportunity to comment on that information before the decision to dismiss him was made on 9 February 2011. 76. At present, the disclosure of disputed documentation numbered 2 to 7, 11(a) to 11(h) and 13(a) to 13(d) contains relevant information for the purposes of s 4(1A)(c)(i) and is necessary:

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(a)

To enable the plaintiff to understand the selection process which was advised by Oracles corporate.

(b)

To enable the plaintiff to understand the actual selection process and its associated documents, which was followed by the defendant Elizabeth Mccusker and selection panel members in February 2010 for selecting RIF candidates. And the subsequent selection process followed by the defendant Roger Hooper and selection panel members for RIF candidates in January 2011, which resulted in to disestablishment of plaintiff position.

(c)

To enable the plaintiff to understand the methods and comparison criteria used by Oracle to identify RIF candidates within existing employees, and then engaged external contractors and overseas employees.

(d)

The plaintiff is entitled to access them for the purpose of providing evidence and submissions about them.

Documents numbered 8 to 10 and 12(a) to 12(c) of Form6 (Amended) Notice Requiring Disclosure 77. At the time of plaintiffs final meeting with Roger Hooper on 9 February 2011, Oracle had employed seven external contractors employed and four overseas employees. 78. At that time, the defendant did not disclose the description of work done by any of the employed external contractors or overseas employees. 79. The defendant continuously employed them even after the plaintiff was made redundant on 9 February 2011.

Project Progress Reports and Timesheets 80. The plaintiff has requested following document disclosures (document numbered 8 to 9) in relation to Internal Project Progress Report reports and timesheets under Form6 Notice Requiring Disclosure:

8. A true copy of timesheets submitted by three of the four Oracles overseas employees from the week of 3 January 2011 to 31 May 2011 for working on New Zealand based projects.

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9. True copies of all of internal Project Progress Reports (PPR) form 1 January 2011 to 31 May 2011 for following projects: (a) Housing New Zealand project (b) Victoria University Wellington Upgrade project

81.

The Project Progress Report (PPR) is the record of a projects progress, and is usually created every month. It will be split into two reports. The first one is called as Customer PPR Report which is provided to customer for which the project work has been carried out.

82.

The second one is called as Internal PPR Report. This report is internal to Oracle and will not be shared with the customer.

83.

Contrary to a Customer PPR Report, an Internal PPR Report provides detailed information about the project status, the Oracles consultant team movement within that period and its plan for the following period, and summary of the work done by the Oracle consultants during that period. The consultants in this report includes all external contractors, overseas employees, Oracle NZ employees during the period of plaintiffs redundancy and work done by employees which were hired after the plaintiff completed his notice period.

84.

Therefore the description of the work done by all consultants on New Zealand based projects can be found under Internal PPR.

85.

Apart from internal PPR, the weekly timesheets submitted by Oracles overseas employees also contains a column for description. This is the place where the consultant himself describes the work undertaken by him on the project.

Significant Projects Register 86. The plaintiff has requested following document disclosures (document numbered 10) in relation to Significant Projects Register under Form6 Notice Requiring Disclosure:

10. True copies of Oracles Significant Project Register report for the months from February 2011 to May 2011, for all New Zealand based projects. If these files were maintained in Microsoft Excel

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then please ensure that the details from all the columns of these excel based files must be clearly printed.

87.

The data in APAC Significant Projects Register report is prepared by Oracles Project Management Office (PMO) team members responsible for each of the countries in Asia Pacific (APAC) and Oceania (ANZ) region. This report lists down country-wise details of all ongoing significant projects and potential opportunities.

88.

The data in Significant Projects Register report will be extracted and consolidated from Oracles internal system named Project Accounting, and the Project Progress Reports for each of the projects.

89.

In summary the Significant Projects Register report majorly details about the following for each of the projects listed in it: (a) Project Resourcing related requirements, which includes any present or the subsequent month hiring, firing and any human resourcing related issues. (b) The name of the client company, project start date and forecast end-date, and a summary statement on the project status. (c) For each of the projects, it also lists down which Oracle software product or application will be implemented on that clients project. (d) Any extension to existing projects and their corresponding details. These extensions are also called as Change Requests. (e) Details of potential opportunities pursued and whether it has been won by Oracle. These are called as a bid and if it is won then it becomes a project.

90.

In Oracle, all future project work requirements, including bids and change requests are also called as a projects in the pipeline. And Oracle Practice Manager works with the employees to plan their resource when such work is expected.

91.

The defendant Roger Hooper did not share the details of work in the pipeline with the plaintiff.

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External Recruitment 92. The plaintiff has requested the disclosure of documents for the new jobs advertised (document numbered 12(a) to 12(c) of Form6 Notice Requiring Disclosure):
12. Hiring manager name, true copies of Oracles iRecruitment requisition raised by hiring manager and true copies of detailed job description of the following jobs: (a) Job with title Senior Principal Consultant (Job Ref IRC1497877) advertised in Oracle iRecruitment website on 23 March 2011 (b) Job with title Oracle Applications Solutions Architect advertised at seek.co.nz website on 24 May 2011. (c) Job with title Principal Consultant (Job Reference IRC1617673) advertised in Oracle iRecruitment website in the month of October 2011.

93.

A number of positions were posted Oracles iRecruitment website, after the plaintiff had completed the four weeks notice period on 8 March 2011. These positions had started appearing from 23 March 2011 onwards, and had job description similar to the position plaintiff held.

94.

Every new job which gets created in Oracles Consulting Services department goes for four levels of approval. The process of multiple approval could take several weeks from the day a new job requisition gets raised by the hiring manager.

95.

Once a new job gets approved (that is after four levels of approval), it will be advertised internally in Oracles iRecruitment website for two weeks.

96.

Adding the two, that is the time it takes for four level of approvals for a new job and the two weeks time to advertise the job internally, it appears that the new job requisition would have been raised anywhere between six to eight weeks before the job was externally advertised on 23 March 2011.

97.

Therefore the hiring manager would have posted the job requisition for internal four levels of approval between late January 2011 and early February 2011, which was the time under which the plaintiff was given the proposed disestablishment notice and was subsequently made redundant.

98.

Section 4(1A) of the Act, which came into effect in 2004 subsequent to the Court of Appeals judgement in Coutts Cars Ltd v Baguley ([2001] ERNZ

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601), imposed additional statutory good faith obligations on parties to an employment relationship to those that already existed under s.4 of the Act. 99. This included the new s.4(1A) obligation which was placed on an employer which was proposing to make a decision that may affect an employees ongoing employment. That required an employer to provide the potentially affected employee with access to information relevant to its decision and an opportunity to comment on that information before it made a final decision (S.4(1A)(c)(i)&(ii) ERA) about a matter that may affect the employees ongoing employment. 100. Applying the same principle to the present case, the defendant failed to fulfil its obligations as a good and fair employer and in particular has breached its duty of good faith by failing to make available to plaintiff sufficient information to engage appropriately and give him a genuine opportunity to participate actively in the consultation process. The hiring process started around the time the plaintiff was given the proposed notice of disestablishment in January 2011, but the defendant did not share this information with plaintiff. 101. After all, s4(1A)(c) of the Act requires the employer to give the employee an opportunity to comment before the decision is made. That opportunity must be real and not limited by the extent of the information made available by the employer: Wrigley per Travis J. 102. The plaintiff hence requests the disclosure of documents numbered 8, 9, 10 and 12(a) to 12(c) of Form6 Notice Requiring Disclosure. These documents are relevant as per Regulation 38 Employment Court Regulations, and are relevant to this case for the purpose of providing evidence and submissions about them.