| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 242 |
| Hearing date | 29 May 2012 |
| Determination date | 17 July 2012 |
| Member | E Robinson |
| Representation | M Watson ; T Cleary |
| Location | Whangarei |
| Parties | Cox v Silver Fern Farms Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Discrimination – UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed respondent discriminated against applicant because of applicant’s disability – Applicant claimed unjustifiably dismissed by respondent – Authority found no evidence respondent discriminated against applicant because of applicant’s disability – No unjustified disadvantage – Found reasonable for respondent to rely on conclusion in four reports that applicant unfit to carry out requirements of applicant’s position – Found reasonable for respondent to make further enquiries of doctors giving applicant full medical clearance given conflict between clearances and opinion of three specialists – Found respondent concluded fairly and reasonably risk of further injury if applicant continued in position – Found respondent entitled to consider needs of other employees to undertake alternative positions in declining to allow applicant to carry out light duties permanently – Found applicant given opportunity to comment on medical reports – Dismissal justified – Meat processor |
| Abstract | Applicant employed by respondent as meat processor. Applicant claimed respondent discriminated against applicant because of applicant’s disability. Applicant claimed unjustifiably dismissed by respondent. Applicant injured back while working but able to resume full duties. Four years later applicant’s condition deteriorated and applicant placed on light duties. Specialist (“G”) concluded applicant permanently unfit to carry out heavy manual work. Three months later another specialist (“M”) recommended applicant avoid repetitive heavy lifting. Four months later orthopaedic surgeon (“P”) concluded applicant not fit for level of work demanded of applicant. At meeting applicant provided respondent with medical certificate clearing applicant for restricted duties. At subsequent meeting applicant provided respondent with medical certificate giving applicant full medical clearance. Respondent refused to accept certificate on ground doctor issuing certificate had not been involved in diagnosis or treatment of applicant’s injury and respondent doubted certificate based on full information. Four days later respondent received medical certificate from another doctor giving applicant full medical clearance. Respondent’s inquiries revealed doctor had not been sent all relevant information. At respondent’s suggestion, applicant assessed by occupational therapist (“K”). K concluded applicant’s return to role inappropriate in long term. At subsequent meeting respondent refused to allow applicant to continue light duties on permanent basis as light duties used as part of rotational and rehabilitation process for all employees. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANATGE – UNJUSTIFIED DISMISSAL: No evidence respondent discriminated against applicant on ground of disability. Any discrimination justifiable as respondent foresaw risk of further harm to applicant, or to others if availability of rotational duties limited. No unjustified disadvantage. Respondent’s actions to be assessed on basis of information available at relevant time. Respondent carried out enquiries to reasonable extent. Reasonable for respondent to rely on conclusion in reports by G, M, P and K that applicant unfit to carry out requirements of applicant’s position. Reasonable for respondent to make further enquiries of doctors giving applicant full medical clearance given conflict between clearances and opinion of three specialists in area of spinal injury. Respondent agreed to obtain assessment from K after applicant had supplied medical certificates giving applicant full medical clearance. Respondent concluded fairly and reasonably risk of further injury if applicant continued in position. Respondent entitled to consider needs of other employees to undertake alternative positions in declining to allow applicant to carry out light duties permanently. No contractual obligation to continue providing applicant light duties. Applicant given opportunity to comment on medical reports. Dismissal justified. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Accident Compensation Act 2001;ERA s103A;Human Rights Act 1993;Human Rights Act 1993 s22;Human Rights Act 1993 s29(1)(b);Human Rights Act 1993 s35 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd (1990) ERNZ Sel Cas 985; [1990] 3 NZLR 549;Barnett v Northern Region Trust Board of the Order of St John [2003] 2 ERNZ 730;Canterbury Clerical Workers Industrial Union of Workers v Andrews and Beaven Ltd [1983] ACJ 875;Hoskin v Coastal Fish Supplies Ltd [1985] ACJ 124;Lang v Eagle Airways Ltd [1996] 1 ERNZ 574 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Auckland_242.pdf [pdf 227 KB] |