| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 203 |
| Hearing date | 27 Jun 2013 |
| Determination date | 30 September 2013 |
| Member | C Hickey |
| Representation | R Webster ; V Reid |
| Location | Nelson |
| Parties | Connell v Sepclean Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Discrimination - Dismissal unjustified - No unjustified disadvantage - ARREARS OF WAGES - Respondent to pay applicant $528 arrears of wages |
| Abstract | Applicant (Mr Connell) employed by respondent (Sepclean Ltd) as general operator (Electricity, Gas, Water and Waste Services Sector). Applicant claimed unjustifiably disadvantaged and discriminated against in employment by reason of disability and unjustifiably dismissed by respondent. Applicant had prosthetic leg after partial amputation. Applicant applied for full-time role with respondent unsuccessfully. Respondent suggested other work available and “trial run” arranged. Respondent offered applicant part-time position. Respondent aware of applicant’s disability. Applicant unable to work in salt water due to potential damage to prosthetic leg. Respondent advised applicant driving work slowing down and would have to start septic tank work. Applicant’s hours reduced. Respondent advertised new position. Applicant claimed position advertised similar to applicant’s role. Applicant’s employment terminated. Respondent claimed redundancy genuine due to loss of contract and subsequent diminution of driving work. Respondent considered whether applicant physically able to do other work but concluded disability limited applicant too much to redeploy to different role. Full-time general operator position became available following applicant’s dismissal however applicant not considered for position. Respondent claimed applicant would be unable to cope with day to day demands of general operator’s role because operators sometimes required to work on sloping or wet terrain. Respondent claimed successful candidate for position had preferred skills. Respondent claimed disappointed in applicant’s ability to perform leadership role. Respondent claimed disability not taken into account when deciding to end trial period but taken into account when considering applicant for full-time position. Respondent claimed valid 90-day trial period effective. Parties disputed whether any exceptions to personal grievance of discrimination applied. Applicant sought arrears of wages. Applicant claimed entitled to payment in lieu of notice period.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant worked in exchange for remuneration during “trial run”. Fundamental characteristics of employment agreement (“EA”) present. EA stated agreement valid from start of “trial run”. Applicant already employed when EA offered and accepted. 90-day trial period not valid. Applicant not only employed as driver. Applicant carried out and could continue to carry out duties performed by general operator. Respondent did not consider whether applicant had useful skills to contribute to general labouring duties. Respondent failed to put considerations to applicant in decision to dismiss and failed to provide applicant opportunity to comment. Breach of good faith to determine applicant not suitable to redeploy without consultation. Respondent’s failures to adequately inform and consult applicant and consider applicant for redeployment more than minor. Applicant dismissed by reason of disability in circumstances where another employee of same experience and qualifications but without disability would not have been dismissed. Applicant subject to detriment by reason of disability by not being considered for redeployment. Applicant’s only limitation unwillingness to work in sand and salt water. Limitation reasonably accommodated by respondent and likely able to be accommodated in future. No exception available to justify discrimination. Applicant discriminated against in employment. Dismissal unjustified. Authority declined to make further finding of unjustified disadvantage as respondent’s process already considered under unjustified dismissal claim. REMEDIES: No contributory conduct. $10,000 compensation appropriate. Respondent to pay applicant $2,640 reimbursement of lost wages.;ARREARS OF WAGES: Applicant entitled to payment in lieu of notice. Respondent to pay applicant $528 arrears of wages. |
| Result | Applications granted; Compensation for humiliation etc ($10,000); Reimbursement of lost wages ($2,640); Arrears of wages ($528); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 - ERA s4(1A)(c) - ERA s67A - ERA s67B - ERA s67B(1) - ERA s67B(2) - ERA s67B(3) - ERA s103A - ERA s103(1) - ERA s103(1)(b) - ERA s103(1)(c) - s103(1)(g) - s103A(3) - ER s104 - ERA s104(1)- ERA s104(1)(b) - ERA s105(h) - ERA s105(2) - ERA s106(f) - ERA s124 - ERA s128(2) - ERA s128(3) - Human Rights Act 1993 s21(1) - Human Rights Act 1993 s29 - Human Rights Act 1993 s29(1)(a) - Human Rights Act 1993 s29(3) - Human Rights Act 1993 s35 |
| Cases Cited | GN Hale & Sons Ltd v Wellington Caretakers IUOW (1990) ERNZ Sel Cas 843; [1991] 1 NZLR 151;Howe - Thornley v The Salad Bowl Ltd [2013] NZERA Christchurch 25;Jinkinson v Oceania Gold (NZ) Ltd (No 2) [2010] NZEmpC 102;Kitt v Tourism Commission and others (1987) EOC 92-196;Michael Rittson-Thomas trading as Totara Hills farm v Davidson [2013] NZEmpC 39;Motor Machinists Limited v Craig [1996] 2 ERNZ 585;Poverty Bay Electric Power Board v Atkinson [1992] 3 ERNZ 413;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253;The Salad Bowl Ltd v Howe - Thornley [2013] NZEmpC 152;Wang v Multicultural Trust [2010] NZEmpC 142 |
| Number of Pages | 30 |
| PDF File Link: | 2013_NZERA_Christchurch_203.pdf [pdf 354 KB] |