| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 118 |
| Hearing date | 23 May 2012 - 24 May 2012 (2 days) |
| Determination date | 01 October 2012 |
| Member | P R Stapp |
| Representation | B Bucket ; B Corkill QC |
| Location | Wellington |
| Parties | Kindell v The New Zealand Public Service Association Te Pukenga Here Tikanga Mahi Inc (PSA) |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Authority found respondent entitled to raise concerns about applicant’s absences and applicant should have been more communicative – Found referral to specialist only permitted under collective employment agreement in exceptional circumstances and implicit some consultation required before referral – Applicant unjustifiably disadvantaged by respondent requiring applicant to attend medical assessment with specialist of respondent’s choosing without consultation – Found respondent entitled to conclude applicant not cleared to return to work and no realistic prospect in future applicant able to carry out duties with reasonable continuity – Found fair and reasonable employer could not rely on failure to get applicant to attend specialist as applicant’s initial refusal due to respondent’s failure to consult on choice of specialist and applicant entitled to rely on respondent’s communication to specialist not to go ahead with further appointment – Found failure to get applicant to attend specialist not raised as issue until dismissal letter and unfair to raise issue without discussion with applicant before decision made – Found fair and reasonable employer would have met with applicant to give applicant opportunity to comment on dismissal decision – Found given resources available to respondent fair and reasonable employer could have investigated better by assembling all relevant information and conducting medical assessment agreed to by applicant – Dismissal unjustified – REMEDIES – Reinstatement not practicable – No contributory conduct – $5,000 compensation appropriate – Organising administrator |
| Abstract | Applicant employed by respondent as organising administrator. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Parties’ collective employment agreement (“CEA”) provided applicant able to take as much sick leave as necessary to recover from illness and respondent had right in exceptional circumstances to request applicant visit registered medical practitioner nominated by respondent. Respondent wrote to applicant setting out respondent’s concerns about applicant’s absences. Applicant considered respondent’s information false and no reason to meet with respondent initially. After unsuccessful mediation nine months later respondent delivered letter to applicant’s home and claimed necessary as previous communications appeared not to be received always. Five days later applicant claimed illness caused by damp and draughty workplace. Applicant claimed respondent failed to honour agreement to allow doctor to visit workplace to conduct assessment. One month later respondent requested applicant see specialist to determine applicant’s capacity for work. First appointment not kept as applicant objected had been arranged without input from applicant. Second appointment one month later not kept as respondent had issue with notice given and arrangements occurred while applicant on holiday. Specialist told by respondent not to book further appointments and specialist informed applicant of this instruction. Applicant’s doctors provided two further medical reports. Respondent considered reports did not provide much certainty about applicant’s ability to resume work. Respondent raised possibility of medical retirement but applicant claimed threatening and intimidating. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent entitled to raise concerns about applicant’s absences given open ended nature of sick leave provision in CEA. Applicant’s interpretation letter involved false allegation exaggerated. Respondent entitled to meet with applicant to discuss schedule of absences and applicant should have been more communicative. Unfortunate respondent delivered letter personally to applicant at home after mediation but not fatal. Evidence did not establish causal link between work environment and applicant’s ill health. No evidence of agreement respondent would allow workplace assessment to take place. Referral to specialist only permitted under CEA in exceptional circumstances and implicit some consultation required before referral. Applicant unjustifiably disadvantaged by respondent requiring applicant to attend medical assessment with specialist of respondent’s choosing without consultation. Medical assessments provided to respondent by applicant not clear about return to work date and did not provide medical clearance to resume work. Respondent not threatening applicant with use of medical retirement. Respondent entitled to conclude applicant not cleared to return to work and no realistic prospect in future applicant able to carry out duties with reasonable continuity. Fair and reasonable employer could not rely on failure to get applicant to attend specialist as applicant’s initial refusal due to respondent’s failure to consult on choice of specialist and ability for information to be provided to specialist, and applicant entitled to rely on respondent’s communication to specialist not to go ahead with further appointment. Failure to get applicant to attend specialist not raised as issue until dismissal letter and unfair to raise issue without discussion with applicant before decision made. Fair and reasonable employer would have met with applicant to give applicant opportunity to comment on dismissal decision. Given resources available to respondent fair and reasonable employer could have investigated better by assembling all relevant information and conducting medical assessment agreed to by applicant. Dismissal unjustified. REMEDIES: Reinstatement not practicable as applicant not cleared to return to work and parties’ relationship broken down. No contributory conduct. $5,000 compensation appropriate. |
| Result | Applications granted; Compensation for humiliation etc ($5,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A(3) |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Wellington_118.pdf [pdf 238 KB] |