| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 271 |
| Hearing date | 28 Jun 2011 - 29 Jun 2011 |
| Determination date | 13 December 2012 |
| Member | M B Loftus |
| Representation | J Copeland ; M Richards |
| Location | Dunedin |
| Parties | Marsh v The New Zealand Fire Service Commission |
| Summary | UNJUSTIFIED DISMISSAL – Incapacity - Applicant claimed unjustifiably dismissed by respondent – Authority found applicant’s employment ended due to frustration of contract following work injury – Found medical evidence showed applicant incapable of performing required duties – Found respondent made reasonable decision in ending applicant’s employment – Found respondent entitled to conclude relationship with applicant could not continue at point in time it made decision – Dismissal justified – Senior Station Officer |
| Abstract | Applicant employed by respondent as senior station officer. Applicant claimed unjustifiably dismissed by respondent following head injury sustained at work. Seven months after incident applicant suffered significant balance problems. Applicant declared temporarily unfit for work. Applicant returned under individual rehabilitation plan. Respondent arranged separate appointments for applicant with specialist (“D”) and neurologist (“M”). Applicant claimed D’s diagnosis incorrect. Applicant believed D’s recommended procedure would lead to permanent damage. D’s prognosis suggested applicant would have ongoing balance concerns. Applicant dissatisfied with M’s diagnosis which claimed applicant not safe to return to job. Applicant saw consultant physician. Applicant claimed whiplash sustained but not apparent in diagnosis from consultant physician. Respondent accepted dismissed applicant. Respondent concluded applicant’s condition incompatible with return to operational fire fighting and ceased rehabilitation programme. Respondent commenced investigation into medical retirement for applicant. Applicant’s general practitioner forwarded reports from D and M to respondent’s principal medical officer who interpreted as endorsement of content by general practitioner. Applicant attempted to withdraw consent for respondent to access applicant’s medical information. Respondent’s principal medical officer considered reports and recommended medical retirement for applicant. Respondent accepted recommendation and applicant advised by letter.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant’s employment ended due to frustration of contract. Medical evidence showed applicant incapable of performing required duties. Applicant given opportunity to provide information which could have prevented termination. Respondent entitled to conclude relationship with applicant could not continue at point in time it made decision. Respondent made reasonable decision in ending applicant’s employment. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Fire Service Act 1975 s72;Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| Cases Cited | Motor Machinists Ltd v Craig [1996] 2 ERNZ 585 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Christchurch_271.pdf [pdf 183 KB] |