| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 23 |
| Hearing date | 15 Jan 2013 |
| Determination date | 24 January 2013 |
| Member | E Robinson |
| Representation | A McInally : A Hansen |
| Location | Auckland |
| Parties | Saunders v Mulford Engineering Plastics |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Authority found applicant had arguable case for unjustified dismissal – Found applicant failed to act in responsive and communicative manner and undermined respondent’s trust and confidence in respondent – Found possibility applicant contributed to dismissal – No strongly arguable case for interim reinstatement - Found unlikely workplace relationships could be restored – Overall justice of case against interim reinstatement - Application for interim reinstatement dismissed – Fitter turner |
| Abstract | Applicant employed by respondent as fitter turner. Applicant sought interim reinstatement. Applicant claimed unjustifiably dismissed by respondent. Applicant placed on hospital waiting list for knee replacement. Applicant informed manager respondent applicant waiting for surgery. Applicant had no annual or sick leave entitlement remaining meaning any leave discretionary. Respondent’s CFO (“P”) asked for more information on medical condition and asked applicant to get second opinion. P claimed applicant refused to authorise respondent to obtain medical information from applicant’s doctor and refused to see respondent’s doctor. Applicant claimed on public health system waiting list and consequently did not know exact details of operation. Applicant provided respondent with medical certificate stating absence likely to be four to six weeks and another medical certificate stating date for surgery had not been confirmed. P found information unhelpful and requested further information. Applicant reiterated no further information available at time and told P leave not discretionary but necessitated by work related injury. P found no record of claim made to ACC and claimed this undermined respondent’s confidence in applicant and information applicant provided. Respondent declined applicant’s leave request. Two weeks later applicant received notice surgery scheduled for the following week. Applicant notified respondent and filled out leave application. P denied leave request as believed surgery to be elective. Applicant left matter to be dealt with by applicant’s union. Union explained applicant had degenerative arthritis and applicant would become severely incapacitated if left untreated. Union notified respondent likely applicant unfit to work for 42 days post-surgery. Applicant dismissed. Respondent claimed not appropriate for Authority to order interim reinstatement as position filled and would be financial burden on respondent to reinstate applicant. Respondent claimed trust and confidence lost in applicant as consequence of behaviour and risk of applicant being disruptive or undermining management staff if reinstated.;AUTHORITY FOUND-;INJUNCTION: Applicant provided information available to applicant and was not deliberately obtuse. P lacked understanding of New Zealand public health system. Applicant failed to inform respondent of knee pain and that surgery was urgently required. Applicant’s claim about work related injury undermined confidence respondent had in applicant. No concerns about applicant’s performance and standard of work. Applicant had arguable case for unjustified dismissal. Applicant failed to act in responsive and communicative manner and undermined respondents trust and confidence in applicant. Possibility applicant contributed to dismissal and may fail to obtain permanent reinstatement. No strongly arguable case for interim reinstatement. Respondent’s cost argument nor persuasive as another employee left and not been replaced. Unlikely workplace relationships could be restored. Balance of convenience favoured respondent. Overall justice of case against interim reinstatement. Application for interim reinstatement dismissed. |
| Result | Application dismissed; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA - ERA s4 – ERA s4(1A)(b) - ERA s4(1A)(c) - ERA s103A - ERA s125(2) - ERA s127 – ERA s127(4) |
| Cases Cited | Barry v Wilson Parking New Zealand (1992) Ltd [1998] 1 ERNZ 545;Cliff v Air New Zealand Ltd [2005] ERNZ 1;Hoskin v Coastal Fishing Supplies Ltd [1985] ACJ 124;McKean v Ports of Auckland Ltd [2011] ERNZ 311;X v Y Ltd [1992] 1 ERNZ 863 |
| Number of Pages | 16 |
| PDF File Link: | 2013_NZERA_Auckland_23.pdf [pdf 230 KB] |