| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 68 |
| Hearing date | 12 Feb 2013 |
| Determination date | 26 February 2013 |
| Member | R Larmer |
| Representation | D Vinnivombe ; J Nadan |
| Location | Auckland |
| Parties | Siegel v Advance International Clearning Systems (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed unjustifiably dismissed by respondent – Authority found fair and reasonable employer could have concluded termination of applicant’s employment appropriate outcome after applicant’s absence from work for two months with no knowledge of when applicant would return – Found respondent sent letters to incorrect address depriving applicant of time to prepare for meeting – Found fair and reasonable employer would ensure had employee’s latest medical information available before dismissing employee – Found respondent failed to engage with ACC to formulate return to work plan for applicant and did not discuss with applicant advice in ACC certificate applicant could return to light duties if did not lift more than 15 kilograms or discuss with applicant available light duties – Dismissal unjustified - REMEDIES – 25 per cent contributory conduct - $1,500 compensation appropriate - Service Technician |
| Abstract | Applicant employed by respondent as service technician. Applicant claimed unjustifiably dismissed by respondent. Applicant broke wrist in non work related accident. Respondent not directly informed of accident by applicant. Respondent instructed applicant by letter to provide proof medically cleared to resume duties and warned failure would result in termination of applicant’s employment. Letter delayed in reaching applicant as incorrectly addressed. Meeting between parties to discuss applicant’s ability to return to work adjourned to allow applicant to provide outcome of medical appointment. Applicant not cleared to return to work following appointment and applicant did not give respondent medical information as agreed. In second incorrectly addressed letter to applicant respondent stated believed applicant did not want to continue work as had asked to collect tools from colleague, stated applicant had not provided medical clearance to resume work and emphasised problems applicant’s absence causing respondent’s business. Respondent stated would terminate applicant’s employment if no response from applicant within one week. Applicant claimed did not see letter until five days later. Applicant wrote to respondent wished to return to work, would provide respondent with upcoming medical report, requested respondent work with ACC to formulate return to work plan, stated belief could perform majority of duties plus other light duties and sought further meeting with respondent. Applicant sent respondent ACC certificate stating applicant could continue light duties but not lift items heavier than 15 kilograms. Respondent disputed majority of applicant’s duties involved lifting less than 15 kilograms. Respondent informed applicant could not keep applicant’s job open as applicant not cleared to resume normal duties. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent faced serious pressure in keeping applicant’s job open and training required meant impractical to engage temporary worker to cover applicant’s duties. Fair and reasonable employer could have concluded termination of applicant’s employment appropriate outcome after applicant’s absence from work for two months with no knowledge of when applicant would return. Respondent sent letters to incorrect address depriving applicant of time to prepare for first meeting and applicant not advised of right to have support person at meeting. Respondent failed to follow up when applicant did not provide medical report as agreed and only considered ACC certificate in making decision to dismiss applicant. Fair and reasonable employer would ensure had latest medical information available before dismissing employee. Respondent failed to engage with ACC to formulate return to work plan for applicant and did not discuss with applicant advice in ACC certificate applicant could return to light duties if did not lift more than 15 kilograms, or discuss with applicant available light duties. Fair and reasonable employer would not terminate applicant’s employment over phone particularly when applicant requested further meeting to discuss situation. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. $1,500 compensation appropriate. |
| Result | Application granted ; Contributory conduct (25%) ; Compensation for humiliation etc ($1,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(5);ERA s124 |
| Number of Pages | 8 |
| PDF File Link: | 2013_NZERA_Auckland_68.pdf [pdf 173 KB] |