kabeer khan vs oracle challange to objection to diclosure

8/12/2019 Kabeer Khan Vs Oracle Challange to Objection to Diclosure

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To the above-named defendant

And Tothe 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) declaring the objection to be ill-founded; and

(b) 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


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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


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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 inrelation 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.


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(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


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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


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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


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these processes were commenced.

Document Number 11(a), Form 6

(b) 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

(d) Roger Hooper and the selection panel members

recommendations for omitting other candidates from RIF list

and/or proposed notice of disestablishment.

Document Number 11(b), Form 6

(e) 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.


(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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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 12March 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 inVice 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


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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 inVice 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 thecase. 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 inVice 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 f irst

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 employeesongoing 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: Wrigleyper 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.


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