| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 8 |
| Hearing date | 12 - 13 Dec 2013 |
| Determination date | 21 January 2014 |
| Member | D Appleton |
| Representation | C Wightman (in person) ; T Cleary |
| Location | Christchurch |
| Parties | Wightman v Silver Fern Farms Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether applicant’s unjustified disadvantage grievances raised within 90 days – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Whether respondent failed to provide personal protective equipment to applicant working in chiller unit – Agreement for applicant to undergo knife training before moving back to night shift trimming bones – Whether binding agreement between parties training would last two days only – Complaints to Ministry of Business, Innovation and Employment (“MBIE”) – Whether applicant bullied by supervisor (“B”) during training – Applicant removed from B’s supervision during internal investigation – Duty to provide safe workplace |
| Abstract | AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Applicant’s grievances bullied by B during knife training and not protected during knife training not raised within 90 days. Applicant’s grievances subjected to blast chiller without sufficient action to alleviate problems, removed from lidder room without consultation after complaint to MBIE, respondent breached agreement training would last two days only, applicant ordered to return to day shift in same locality as B and respondent failed to attend second mediation raised within 90 days.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant unjustifiably disadvantaged by respondent’s failure to issue warm jerseys as matter of urgency. Respondent’s steps after warm jerseys provided fair and reasonable. Fair and reasonable employer could have decided to remove applicant from lidder room given respondent’s duty to ensure applicant did not suffer ill-health. Applicant consulted over move from lidder room. No binding agreement that applicant’s training would last two days only. Respondent entitled to ask applicant to work in different area under direct supervision of different supervisor. Too early for respondent to have been reasonably expected to attend second mediation session. B did not set out to intimidate or bully applicant and no cogent evidence applicant targeted by B or treated adversely compared to other workers during knife training. Applicant not bullied by B. Respondent did not follow course of conduct with deliberate and dominant purpose of coercing applicant to resign. Respondent’s removal of applicant from B’s direct supervision and direction applicant to work in different area fair and reasonable. No breach of duty by respondent at time applicant resigned. Respondent never had opportunity to address applicant’s concerns about ways B could continue to bully applicant. Applicant’s resignation not foreseeable. Applicant’s resignation pre-planned. No constructive dismissal. REMEDIES: No contributory conduct. $500 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($500) ; Application partially granted (raising personal grievance) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s124;Health and Safety in Employment Act 1992 s19 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Creedy v Commissioner of Police [2006] ERNZ 517;Lloyd v Museum of New Zealand Te Papa Tongarewa (No 2) [2003] 2 ERNZ 685;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407;Waikato District Health Board v Clear [2010] NZCA 305;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95;Weston v Advkit Para Legal Services Ltd (2011) 8 NZELR 604;Woolf v Kelston Girls High School Board of Trustee’s unreported, Colgan J, 21 July 2000, AC28B/00 |
| Number of Pages | 26 |
| PDF File Link: | 2014_NZERA_Christchurch_8.pdf [pdf 254 KB] |