| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 153 |
| Hearing date | 23 May 2012 - 29 Jun 2012 (2 days) |
| Determination date | 27 July 2012 |
| Member | D Appleton |
| Representation | E Mitchell ; R Chapman |
| Location | Invercargill |
| Parties | Davey v Prime Range Meats Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed unjustifiably dismissed by respondent after work injury – Authority found respondent should have sought further information on applicant’s health before made decision to dismiss - Dismissal unjustified – REMEDIES - No contributory conduct - Reimbursement of lost wages not appropriate as applicant would have received ACC payments - $5,000 compensation appropriate - RAISING PERSONAL GRIEVANCE – UNJUSTIFIED DISADVANTAGE – Found although respondent should have better explored whether suitable light duties available for applicant to perform after injury, no unjustified disadvantage – Found applicant’s grievance that duties required to perform after returned from sick leave worsened applicant’s injury not raised within 90 day period – Found applicant unjustifiably disadvantaged by manager’s comment applicant should sign in and out when left workplace as, due to applicant’s criminal history, manager scared applicant would “rob a bank or shoot somebody” but applicant did not raise grievance at time and Authority did not have jurisdiction to consider claim – Found not sufficient evidence applicant only employee expected to sign out if left workplace at lunchtime - No unjustified disadvantage |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Applicant claimed unjustifiably disadvantaged by respondent’s failure to consider and provide applicant with light duties and respondent’s singling out of applicant due to applicant’s criminal convictions. Applicant injured shoulder but continued with normal duties for period until no longer able to carry out normal duties. Applicant claimed notified supervisor of injury immediately. Applicant placed on light duties. Applicant claimed light duties still required some physical work which aggravated injury. Applicant placed on sick leave and subsequently had graduated return to work and was advised not do any heavy lifting. Applicant claimed returned to same light duties on return to work but saw doctor again after work caused applicant pain. Doctor provided further medical certificate stating if no light work available applicant would need to be off work. Applicant claimed told to work in another area of respondent but when presented for work was told to go home until supervisor could arrange for suitable work for applicant. Applicant placed on further sick leave and asked to attend meeting with respondent. Parties disputed whether applicant told respondent would be having surgery. Applicant agreed had carried out some functions which should not have done while on light duties but difficult to ask colleagues for assistance. Respondent claimed applicant’s recovery period likely to be lengthy and did not hear anything further from applicant. Applicant dismissed five days later.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent inferred after parties’ meeting applicant required surgery. Not reasonable for respondent to dismiss applicant without further consultation. Respondent should have sought further information on applicant’s health before made decision to dismiss. Dismissal unjustified. REMEDIES: No contributory conduct. Reimbursement of lost wages not appropriate as applicant would have received ACC payments. $5,000 compensation appropriate.;RAISING PERSONAL GRIEVANCE – UNJUSTIFIED DISADVANTAGE: Applicant raised grievance that respondent failed to explore and implement appropriate light duties for applicant within 90 day period. Respondent did not fully comply with good faith obligations as required to make reasonably full and effective enquiries whether light duties available for applicant to perform. Very few suitable light duties available at respondent applicant could have performed while injured. Although respondent should have better explored whether suitable light duties available, no unjustified disadvantage. Applicant’s grievance that duties required to perform after returned from sick leave worsened applicant’s injury not raised within 90 day period. Applicant unjustifiably disadvantaged by manager’s comment applicant should sign in and out as manager scared applicant would “rob a bank or shoot somebody” but applicant did not raise grievance at time and Authority did not have jurisdiction to consider claim. Applicant raised grievance had been unjustifiably disadvantaged by respondent’s request applicant must sign in and out within 90 day period but not sufficient evidence applicant only employee expected to sign out if left workplace at lunchtime. No unjustified disadvantage. |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($5,000) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A;ERA s114;ERA s114(1);ERA s114(3);ERA s124 |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;Dickson v Unilever New Zealand Ltd (2009) 6 NZELR 463 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Christchurch_153.pdf [pdf 255 KB] |