| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 426 |
| Hearing date | 26 Sep 2012 |
| Determination date | 28 November 2012 |
| Member | J Crichton |
| Representation | R Ingram ; C McDowall |
| Location | Manukau |
| Parties | Cook v Allied Investments Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Authority found trial period provision in applicant’s employment agreement did not make clear applicant could not take personal grievance in respect of dismissal if applicant dismissed during period – Found applicant not employed under 90 day trial period – Found inconceivable applicant did not have clear understanding of job obligations – Found applicant chose to keep nature of medical conditions from respondent denying respondent opportunity to make informed judgments about propriety of having applicant in sole charge of large factory using dangerous chemicals at night – Found applicant breached duty of good faith and respondent entitled to rely on applicant’s failure to disclose medical conditions – Found applicant dismissed without meeting between parties or opportunity to answer allegations – Found respondent should not have sought to discuss matters with applicant while applicant on sick leave – Dismissal unjustified – REMEDIES – Applicant entirely responsible for circumstances giving rise to dismissal – 100 per cent contributory conduct – Security officer |
| Abstract | Applicant employed by respondent as security officer. Applicant claimed unjustifiably dismissed by respondent. As part of recruitment process applicant required to complete application form and disclose condition which may affect applicant’s ability to perform tasks and whether applicant had medical conditions, including nervous disorder or anxiety. Applicant did not disclose suffered from relevant illness. Applicant denied received copy of job description detailing nature and extent of duties required. After applicant’s first work shift, applicant’s supervisor received early morning call applicant unable to work that morning. Applicant subsequently produced certificate from mental health crisis team indicating applicant not fit for work for three days. Respondent’s operations manager contacted applicant and made clear concerned about applicant’s failure to disclose medical conditions prior to employment. Applicant denied meeting proposed to discuss matter or told employment may be terminated. Two days later applicant dismissed. Applicant claimed no obligation to disclose medical conditions. Respondent claimed applicant employed under 90 day trial period and applicant’s medical conditions relevant to safety of applicant and others in workplace.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Trial period provision in applicant’s employment agreement did not make clear applicant could not take personal grievance in respect of dismissal if applicant dismissed during period. Applicant not employed under 90 day trial period. Applicant received copy of job description and, even if not, inconceivable did not have clear understanding of job obligations especially after completing induction and training prior to commencing employment. Nature of applicant’s conditions could potentially place applicant at risk in workplace. Applicant chose to keep nature of conditions from respondent denying respondent opportunity to make informed judgments about propriety of having applicant in sole charge of large factory using dangerous chemicals at night. Although deficiencies in wording of questions on application form, respondent had obligation to acquire information about potential employees to assist in making informed judgments about placement and thus protect employees from harm in workplace. Applicant breached duty of good faith and respondent entitled to rely on applicant’s failure to disclose medical conditions. Applicant dismissed without meeting between parties or opportunity to answer allegations. Respondent should not have sought to discuss matters with applicant while applicant on sick leave. Dismissal unjustified. REMEDIES: Applicant entirely responsible for circumstances giving rise to dismissal. 100 per cent contributory conduct. |
| Result | Application granted; Contributory conduct (100%); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s67A;ERA s103A;ERA s124;Health and Safety in Employment Act 1992;Human Rights Act 1993;Human Rights Act 1993 s21;Human Rights Act 1993 s22;Human Rights Act 1993 s23;Human Rights Act 1993 s29;Human Rights Act 1993 s29(1)(b);Privacy Act 1993 |
| Cases Cited | Imperial Enterprises Ltd v Attwood [2002] 2 ERNZ 740 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_426.pdf [pdf 170 KB] |