| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 234 |
| Hearing date | 3 Oct 2012 |
| Determination date | 26 October 2012 |
| Member | C Hickey |
| Representation | S Saunderson-Warner ; R Moir |
| Location | Dunedin |
| Parties | Ingram v Southern Florring (2011) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Incapacity - Applicant claimed unjustifiably dismissed – Authority found applicant dismissed when applicant told respondent fit to return to work after injury – Found respondent had no substantive justification for applicant’s dismissal – Found respondent failed to meet standard of basic procedural fairness – Found respondent did not act as fair and reasonable employer - Dismissal unjustified – REMEDIES - No contributory conduct – Found not appropriate to award compensation relating to applicant’s use of credit card after dismissal as claim not made until investigation meeting - Respondent to pay applicant $9,017 reimbursement of lost wages - Interest payable - $2,000 compensation appropriate - Vinyl and Carpet Layer |
| Abstract | Applicant employed as vinyl and carpet layer. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant’s dismissal justified based on information respondent received from ACC relating to applicant’s capacity to perform work. Respondent did not make written submissions and only claimed respondent would have difficulty paying award in applicant’s favour. Applicant working on job when felt sudden pain in lower back (“incident”). Applicant did not mention incident immediately but sent respondent director (“M”) text message could not work next day because of back injury. Applicant received medical certificate could not work for nine days. ACC granted cover for applicant’s injury and approved payment of ACC compensation while applicant remained off work. Applicant’s doctor certified applicant unfit for further 28 days. Applicant told respondent fit to return to work after medical certificate expired. M claimed told by applicant’s case worker (“X”) applicant had received number of back injuries previously and X had told applicant “to get out of trade.” M told applicant role “high risk” and because of applicant’s injury history had to “let applicant go.” Applicant received “termination pay” and holiday pay. M claimed applicant had faked injury.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Appropriate for Authority to proceed with matter as applicant’s right to have matter concluded not dependent on respondent’s financial situation. Applicant dismissed when told respondent fit to return to work. Respondent held genuine belief that if allowed applicant to return to work would be “in trouble” with ACC if applicant had further injury. No record of any ACC staff member informing respondent had previously told applicant should not be working in industry. No evidence to support M’s belief applicant had faked injury. Respondent had no substantive justification for applicant’s dismissal. Respondent failed to meet standard of basic procedural fairness. Respondent did not act as fair and reasonable employer. Dismissal unjustified. REMEDIES: No contributory conduct. Not appropriate to award compensation relating to applicant’s use of credit card after dismissal as claim not made until investigation meeting. Respondent to pay applicant $9,017 reimbursement of lost wages. Interest payable. $2,000 compensation appropriate. |
| Result | Application granted ; Compensation for humiliation etc ($2,000) ; Reimbursement of lost wages ($9,017.09) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124;ERA s128;ERA s128(2);ERA Second Schedule cl11;Judicature Act 1908 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Christchurch_234.pdf [pdf 224 KB] |