| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 19 |
| Hearing date | 23 Jan 2012 |
| Determination date | 02 February 2012 |
| Member | D Appleton |
| Representation | L Beecroft ; G Malone |
| Location | Invercargill |
| Parties | Mackie v South Pacific Meats Ltd |
| Summary | JURISDICTION – Whether applicant (Ms Mackie – employee) employee – Applicant claimed was employee of respondent (South Pacific Meats Ltd – employer) and was unjustifiably dismissed – Applicant received letter from respondent which stated offers of employment contingent on employees returning negative drug test result – Applicant passed drug test but not re-employed – Applicant claimed respondent’s first letter constituted offer of employment – Respondent claimed letter not employment offer but rather detailed preliminary hurdle prior to receiving offer – Authority found letter sent to applicant not offer of employment and applicant’s undertaking of drug test not acceptance of offer of employment – Found applicant not employee when informed of no re-employment by respondent – BREACH OF CONTRACT – Applicant claimed respondent’s failure to re-engage applicant constituted breach of collective employment agreement (“CEA”) – Applicant claimed respondent obliged to re-engage individuals on basis of seniority and on that basis applicant should have been re-engaged – Respondent claimed seniority concept not contractual term of CEA but length of service taken into account – Respondent plant manager (“H”) claimed reasons for not re-employing applicant included amount of staff needed, applicant had recently been on ACC and applicant’s partner and co-worker (“K”) had been convicted for growing marijuana which caused concern that applicant could be cannabis user – Found if H had relied on staffing issue alone in deciding whether to re-employ applicant H would still have been bound to have offered applicant employment – Found H justified in taking account of applicant’s ACC record – Found respondent could not legitimately have expected applicant to have informed respondent that K was cultivating cannabis – Found H justified in taking account of possibility that applicant was cannabis user – Found respondent did not breach CEA as H entitled not to re-employ applicant – Applicant claimed respondent breached CEA by not consulting with plant representatives (“P”) about applicant’s re-employment – H claimed did not consult with P because none were on site when short listing of candidates was in progress – Found H’s evidence did not excuse obligation to consult with P and therefore respondent breached CEA – Found, however, breach did not entitle applicant to damages as obligation was only to consult and not for respondent to follow any representations made by P – Applicant claimed respondent’s failure to re-engage applicant constituted breach of Human Rights Act 1993 (“HRA”) – Found not appropriate to enquire into possible breach of HRA as would risk appearance of interfering with jurisdiction of Human Rights Commission and Human Rights Review Tribunal – UNJUSTIFIED DISADVANTAGE – Authority considered applicant could have disadvantage claim – Found H took account of applicant’s ACC history without reference to applicant or medical specialists – Found H took account of applicant’s possible cannabis use without consulting applicant – Found H’s failure to consult fell well short of what fair and reasonable employer would have done – Found applicant deprived of opportunity to give own point of view and have objective assessment made of injury – Unjustified disadvantage –REMEDIES – No contributory conduct – Applicant sought reinstatement – Respondent claimed applicant’s knowledge that K was heavy marijuana user and had been attending work under the influence without raising issue with respondent was factor that dictated against reinstatement – Respondent claimed applicant had been involved in conversations between K and neighbour which meant not practicable to reinstate applicant – Found no cogent evidence presented that K was heavy marijuana user and that had attended work under the influence – Found alleged involvement of applicant in conversations between K and neighbour not sufficient to justify assertion that not practicable to reinstate applicant – Found respondent large employer with considerable resources – Reinstatement ordered once applicant returned negative drug test result – Found applicant took sufficient steps to find work and mitigate loss – $9,852 reimbursement of lost wages appropriate – $10,000 compensation appropriate – ARREARS OF BONUS PAYMENT – Applicant claimed entitled to $500 incentive bonus under CEA – Found applicant would have been entitled to incentive bonus if re-employed – Applicant entitled to $500 bonus payment – Seasonal Meat Worker |
| Result | Application granted (unjustified disadvantage)(arrears of bonus payment) ; Reinstatement ordered on condition ; Reimbursement of lost wages ($9,852) ; Compensation for humiliation etc ($10,000) ; Arrears of bonus payment ($500) ; Application dismissed (jurisdiction)(breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s5;ERA s6;ERA s6(1)(b)(ii);ERA s101;ERA s103(1)(b);ERA s103A;ERA s104;ERA s122;ERA s123;ERA s125;ERA s128;ERA s160(3);ERA s161;ERA s162;ERA s163;ERA s164;Human Rights Act 1993;Human Rights Act 1993 s21;Interpretation Act 1999 s7;Interpretation Act 1999 s17;Interpretation Act 1999 s18;Interpretation Act 1999 s18(1);Interpretation Act 1999 s18(2);New Zealand Bill of Rights Act 1990;New Zealand Bill of Rights Act 1990 s3;New Zealand Bill of Rights Act 1990 s19 |
| Cases Cited | Chief Executive, Department of Corrections v Harris [2001] ERNZ 426;NZ Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Ltd [2004] ERNZ 614;New Zealand Meatworkers' Union Inc v Alliance Group Ltd [2006] ERNZ 664;Rolling Thunder Motor Company Ltd v Kennedy [2010] NZEmpC 109;Waikato Rugby Union v New Zealand Rugby Football Union Inc [2002] 1 ERNZ 752 |
| Number of Pages | 27 |
| PDF File Link: | 2012_NZERA_Christchurch_19.pdf [pdf 128 KB] |