| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 121 |
| Hearing date | 20 Sep 2012 |
| Determination date | 01 October 2012 |
| Member | M Ryan |
| Representation | A Millar ; E Burke |
| Location | Palmerston North |
| Parties | Kardailsky v Agresearch Ltd |
| Summary | INJUNCTION – Application for interim injunction – Applicant claimed unjustifiably dismissed by respondent and sought interim reinstatement – Applicant did not seek permanent reinstatement – Authority found arguable case applicant unjustifiably dismissed - Found balance of convenience favoured respondent – Found as applicant did not seek permanent reinstatement, primary reason for ordering reinstatement did not arise – Found overall justice of case favoured respondent - Application for interim reinstatement declined - Senior Scientist |
| Abstract | Applicant employed as senior scientist. Applicant claimed unjustifiably dismissed by respondent and sought interim reinstatement. Respondent claimed applicant allowed genetically modified plants to flower without adequate protection in breach of regulations. While on annual leave applicant advised by colleague (“X”) that number of applicant’s genetically modified plants flowering and needed to prevent any pollen spread by plants. Applicant requested X not cut back plants and said would return to work next day. X removed some of plant to prevent pollen spread after applicant did not reply to X’s second email. Applicant claimed X’s actions malicious and needed mature plants to complete experiment. Investigation commenced. Respondent claimed applicant had breached regulations as had not adequately controlled pollination of genetically modified plants. Applicant claimed actions compliant and respondent’s manual out of date. Respondent questioned other senior researchers about how used control mechanisms when experiment involved genetically modified plants and concluded applicant had breached regulations and deliberately did not comply with respondent’s policy. Respondent claimed conducted procedurally fair and lengthy investigation. Applicant dismissed. Applicant did not seek permanent reinstatement. Applicant claimed interim reinstatement would not interfere with respondent’s business. Respondent claimed did not have meaningful work for applicant to do on temporary basis. Respondent claimed applicant’s actions had been identified by Ministry of Primary Industries (“MPI”) as critical non-compliance and applicant’s reinstatement could mean further action by MPI and seriously impact respondent’s research.;AUTHORITY FOUND –;INJUNCTION: Applicant did not disagree with respondent’s claims applicant intended to allow plants to flower. Arguable case applicant unjustifiably dismissed. Not arguable case for reinstatement where applicant did not seek permanent reinstatement. Applicant not required to return to experiment immediately. Possible would be further sanctions if applicant returned to workplace which could affect respondent’s other work. Balance of convenience favoured respondent. Authority noted purpose of interim reinstatement was to preserve position until application for permanent reinstatement considered. As applicant did not seek permanent reinstatement, primary reason for ordering reinstatement did not arise. Overall justice of case favoured respondent. Application for interim reinstatement declined. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s127;ERA s127(2);Hazardous Substances and New Organisms Act 1996 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELR 1;Cliff v Air New Zealand Ltd [2005] ERNZ 1;McKean v Ports of Auckland Ltd (2011) 9 NZELR 24 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Wellington_121.pdf [pdf 258 KB] |