| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 101 |
| Hearing date | 4 Apr 2013 - 30 Apr 2013 (2 days) |
| Determination date | 19 August 2013 |
| Member | M Ryan |
| Representation | T Kennedy ; J Tannahill |
| Location | Wellington |
| Parties | Robinson v Pacific Seals (NZ) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Incapacity - dismissal unjustified - PENALTY - No penalty - BREACH OF CONTRACT - HEALTH AND SAFETY - No damages |
| Abstract | Applicant (Mr Robinson) employed by respondent (Pacific Seals (NZ) Ltd) in Retail Trade Sector. Applicant claimed unjustifiably disadvantaged by respondent’s breach of good faith and unjustifiably dismissed by respondent. Applicant seriously injured at workplace after member of public had seizure and drove through respondent’s glass fronted offices. Applicant discharged from hospital four weeks after accident and required wheelchair for five to six months. Applicant covered under ACC and did not return to work. Eleven months after accident respondent claimed unable to keep applicant’s job open. Respondent claimed “no end in sight” as to when applicant would return to work. Applicant dismissed. Applicant claimed respondent breached duty of good faith by failing to be responsive and communicative and failing to provide applicant with information relevant to continuation of applicant’s employment at time of dismissal. Applicant sought penalty for respondent’s breach of good faith. Respondent claimed attempted to contact applicant but applicant failed to return calls. Respondent claimed could “fairly cry halt” to employment due to applicant’s medical incapacity. Applicant sought damages for respondent’s breach of implied duty to provide safe workplace. Applicant claimed raised concerns with respondent over possibility of cars breaking glass frontage and suggested safety barriers. Respondent denied applicant raised concerns over safety.;AUTHORITY FOUND:;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Authority ordered non publication of applicant’s health status. Respondent small business with limited resources. Reasonable for respondent to no longer hold open applicant’s position due to on-going incapacity and uncertainty over return to work date. Substantive grounds to dismiss applicant. Respondent met obligations to be responsive and communicative following accident but failed to make clear to applicant respondent contemplating dismissal. No intention to mislead or deceive applicant but language used by respondent insufficiently detailed and indirect. Meeting process to dismiss applicant not in accordance with minimum standards of procedural fairness. Defects not minor. Respondent’s failure to disclose information relevant to dismissal amounted to breach of good faith. Applicant unjustifiably disadvantaged by respondent’s breach of good faith. Dismissal unjustified. REMEDIES: No contributory conduct. $5,000 compensation appropriate.;PENALTY: Respondent’s omission to provide information relevant to dismissal inadvertent. No penalty.;BREACH OF CONTRACT - HEALTH & SAFETY: No evidence to support conclusion safety rails in front of glass would have prevented accident. Respondent could not have reasonably foreseen accident. No breach of implied duty to provide safe workplace. Even if respondent failed to maintain safe workplace, personal injury claim barred by Accident Compensation Act 2001. No damages. |
| Main Category | Personal Grievance |
| Statutes | ERA s4 - s4(1A) - s4(1A)(b) - s 4(1A)(c) - ERA s174 - ERA Schedule 2 cl10(1) - Accident Compensation Act 2001 - Accident Compensation Act 2001 s317 - Accident Compensation Act 2001 s317(2) - Accident Compensation Act 2001 s317(3) - Accident Rehabilitation and Compensation Insurance Act 1992 s14 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Attorney General v Gilbert [2002] 1 ERNZ 31; [2002] 2 NZLR 342;Barry v Wilson Parking New Zealand (1992) Ltd [1998] 1 ERNZ 545;Brittain v Telecom Corporation of New Zealand Ltd [2001] ERNZ 647; [2002] 2 NZLR 201;Canterbury Clerical Workers IUOW v Andrews & Beaven Ltd [1983] ACJ 875;Hoskin v Coastal Fish Supplies Ltd [1985] ACJ 124;NZ (With Exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582 |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Wellington_101.pdf [pdf 340 KB] |