| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 2 |
| Hearing date | 20 Aug 2014 - 21 Aug 2014 (2 days) |
| Determination date | 09 January 2015 |
| Member | M B Loftus |
| Representation | D Beck ; J Shingleton |
| Location | Christchurch |
| Parties | Fredericks v VIP Frames & Trusses Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - HEALTH AND SAFETY - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by respondent's actions and unjustifiably dismissed by respondent - Applicant hit in chest by nail fired from other employee's (S") nail gun - Lockout on grounds of health and safety - Whether applicant fit to return to work - Truss and frame fabricator" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - HEALTH AND SAFETY - UNJUSTIFIED DISMISSAL: Applicant aired concerns about S's ability to use nail gun. No attempt to justify respondent's lack of response and no evidence respondent attempted to confirm whether S proficient in use of nail gun. Applicant unjustifiably disadvantaged by respondent's failure to provide safe workplace. Applicant not unjustifiably disadvantaged by supervisor's decision to take applicant to hospital personally. Appropriate to institute remedial training for S. Applicant not unjustifiably disadvantaged by S's retention. No evidence of link between act of respondent and inappropriate communications leading to abuse and harassment by applicant's co-workers. Applicant not unjustifiably disadvantaged by breach of privacy. No evidence applicant disadvantaged by respondent's decision not to report incident to Worksafe and no breach of duty in respondent's decision. Respondent obligated to investigate potential hazard regarding applicant's return to work and applicant's failure to respond forced respondent's reaction. Applicant not unjustifiably disadvantaged by lockout. Single breach of duty did not justify applicant's decision to resign. No constructive dismissal. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $6,000 compensation appropriate. |
| Result | Application partially granted (unjustified disadvantage - health and safety) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($6,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128(2);HSE |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Jennings v University of Otago (through its Vice-Chancellor, Professor Fogelberg) [1995] 1 ERNZ 229;Northern Distribution Union v Sherildee Holdings Ltd (t/a New World Titirangi) [1991] 2 ERNZ 675;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;Z v A [1993] 2 ERNZ 469 |
| Number of Pages | 12 |
| PDF File Link: | 2015_NZERA_Christchurch_2.pdf [pdf 185 KB] |