| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 1 |
| Hearing date | 12 Nov 2012 |
| Determination date | 08 January 2013 |
| Member | T MacKinnon |
| Representation | P Cranney ; P McBride |
| Parties | Lealaogata v Timata Hou Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Discrimination - UNJUSTIFIED DISMISSAL - Incapacity – Applicant claimed respondent discriminated against applicant because of applicant’s disability and unjustifiably dismissed by respondent – Authority found respondent entitled to raise and investigate concerns about applicant’s ability to perform role – Found respondent consulted applicant throughout investigation and rejected applicant’s suggestions of alternative employment on reasonable grounds – Found respondent justifiably terminated applicant’s employment on basis applicant unable to carry out all of role’s functions – Found respondent could have been more considerate to applicant in way handled dismissal but defects in respondent’s process defects of compassion not fairness - Dismissal justified – Found applicant’s inability to undertake full range of duties compromised safety of applicant and colleagues and within s29(1)(b) Human Rights Act 1993 exception – Found respondent did not unlawfully discriminate against applicant - No unjustified disadvantage – Community Support Worker |
| Abstract | Applicant employed as community support worker. Applicant claimed respondent discriminated against applicant because of applicant’s disability and unjustifiably dismissed by respondent. Applicant had difficulty standing for long periods or walking any distance due to health issues. Applicant claimed had health issues when commenced employment although health had deteriorated after workplace accident. Applicant claimed able to continue usual duties for a year after accident without any concern from respondent. Respondent provided residential support to people with disabilities who had been involved in criminal offending. Applicant and client (“X”) had received lift in private vehicle back to site after offsite session in breach of respondent’s policy and X’s rehabilitation plan that X to walk to and from site. Applicant claimed X tired after physical activity, did not want to walk to site and became upset. Applicant claimed respondent’s vehicle not available so asked relative to take applicant and X back to site. Parties disputed whether applicant told respondent manager (“H”) that applicant had used vehicle because of applicant’s health issues. Applicant’s team leader told H applicant not meeting requirements of role and was taking into account own mobility when making decisions about clients. Respondent told applicant would review applicant’s suitability for position. Respondent’s doctor (“Y”) claimed applicant could only walk short distances, would not be able to follow client if client attempted to leave premises and unable to control or restrain clients. Y claimed applicant’s health would continue to deteriorate and applicant unlikely to return to full duties if did not have operation. Applicant advised respondent considering terminating applicant’s employment and requested applicant’s comments. Applicant claimed participated in all required activities and way supported clients reduced need for restraint of clients. Applicant dismissed. Applicant claimed arrived at work as believed required to work out notice but discovered dismissal effective immediately.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent entitled to raise and investigate concerns about applicant’s ability to perform role. Authority not convinced applicant’s ability to manage clients mitigated requirement that applicant could pursue client if need arose. Respondent consulted applicant throughout investigation. Respondent rejected applicant’s suggestions of alternative employment on reasonable grounds. Respondent justifiably terminated applicant’s employment on basis applicant unable to carry out all duties. Noted unfortunate and disappointing respondent did not explicitly state applicant not required to work out notice period and applicant not given opportunity to talk to colleagues and explain why leaving. Procedural defects in respondent’s process defects of compassion not fairness. Dismissal justified.;UNJUSTIFIED DISADVANTAGE: Applicant’s inability to undertake full range of duties compromised safety of applicant and colleagues and within s29(1)(b) Human Rights Act 1993 exception. Respondent did not unlawfully discriminate against applicant. No unjustified disadvantage. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(5);ERA s104;ERA s105;ERA s106;Human Rights Act 1993 s21(1);Human Rights Act 1993 s29;Human Rights Act 1993 s29(1)(b) |
| Cases Cited | Barnett v Northern Region Trust Board of the Order of St John [2003] 2 ERNZ 730 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Wellington_1.pdf [pdf 248 KB] |