| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 115 |
| Hearing date | 23 Oct 2012, 17 May 2013 |
| Determination date | 25 June 2013 |
| Member | D Appleton |
| Representation | T George ; T Cleary |
| Location | Ashburton |
| Parties | George v Silver Fern Farms Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed unjustifiably disadvantaged by respondent treating applicant as having abandoned employment and failing to make continuing efforts to contact applicant, respondent’s conduct during meeting and dismissal during meeting – Applicant claimed unjustifiably dismissed by respondent – Wrist injury – Whether injury caused by respondent’s breach of health and safety obligations – Applicant went on parental leave – Whether applicant agreed to return from parental leave on particular date – Whether respondent attempted to contact applicant about absence – Whether applicant abandoned employment – Applicant asked to undertake drugs test upon return – Applicant required to sign new employment agreement – Applicant performed clerical roles – Vocational independence reassessment – Applicant’s wrist deteriorated – Respondent unable to accept deterioration – Respondent advised no suitable vacancies – Whether applicant dismissed by reason of colour, race, or ethnic or national origins – Seasonal worker – Meat packer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non-publication of identity of other employee. Misunderstanding between parties about whether applicant agreed to return from parental leave on particular date. Applicant did not abandon employment by failing to return on particular date. Fair and reasonable employer would not have made only one telephone call before deciding applicant abandoned employment. Neither party took active steps to return applicant to work upon subsequent expiry of parental leave. Applicant did not take up opportunity to be re-employed on night shift. Applicant’s employment ceased upon expiry of parental leave when applicant failed to return to work or contact respondent about return. Cessation of employment function of seasonality of applicant’s work and obligation to take night shift work under seniority provisions in employment agreement. Authority did not have jurisdiction to consider applicant’s unjustified disadvantage claims relating to respondent’s conduct during meeting and dismissal during meeting as applicant not employee at time. Applicant not unjustifiably disadvantaged by being treated as having abandoned employment without applicant’s knowledge as disadvantage overtaken by applicant’s subsequent failure to return to work after parental leave. Lack of effort to contact applicant not adverse as applicant’s employment had lapsed six months when applicant found out about inadequate attempt to contact applicant. No unjustified disadvantage. Nothing prevented employer justifiably dismissing incapacitated employee when incapacity caused by employer. No obligation on respondent in employment agreement to provide injured employee suitable alternative duties. Respondent’s search for alternative duties for applicant not sham. Applicant not dismissed on ground of redundancy. Respondent followed fair and reasonable process. No suitable vacancies for applicant. Material difference between applicant and other employee not dismissed and applicant not discriminated against on ground of applicant’s colour, race, or ethnic or national origins. Dismissal justified. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Accident Compensation Act 2001;Accident Compensation Act 2001 s317;ERA;ERA s6;ERA s103(1)(b);ERA s103A;ERA s104;ERA s114(1);Parental Leave and Employment Protection Act 1987;Parental Leave and Employment Protection Act 1987 s7 |
| Cases Cited | Khan v Air New Zealand Ltd unreported, Y Oldfield, 6 April 2010, AA155/10;George v Silver Fern Farms Ltd [2013] NZERA Christchurch 29;New Zealand Meat Workers’ Union Inc v Alliance Group Ltd [2006] ERNZ 664;New Zealand Workers IUOW v Sarita Farm Partnership [1991] 1 ERNZ 510 |
| Number of Pages | 26 |
| PDF File Link: | 2013_NZERA_Christchurch_115.pdf [pdf 310 KB] |