| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 39 |
| Hearing date | 5 Nov 2014 - 7 Nov 2014 (3 days) |
| Determination date | 09 February 2015 |
| Member | V Campbell |
| Representation | M McKee-Trail ; P Swarbrick |
| Location | Taupo |
| Parties | Twentyman v The Warehouse Ltd |
| Summary | BREACH OF CONTRACT - Applicant sought damages for respondent's breach of employment agreement (EA") - Whether respondent failed to provide safe and healthy workplace - Whether respondent failed to maintain relationship of trust, confidence and fair dealing - Whether respondent failed to provide work environment and management processes such that undue stress not caused to employees - Whether respondent attempted to deny applicant's injury - Work-related injuries - ACC - Whether training provided to applicant insufficient - RAISING PERSONAL GRIEVANCE - Whether grievance raised within 90 days - Whether respondent gave implied consent to grievance being raised out of time - COUNTERCLAIM - PENALTY - GOOD FAITH - Respondent sought penalty for applicant's breach of EA and duty of good faith - Surveillance - Night filler" |
| Abstract | AUTHORITY FOUND -;BREACH OF CONTRACT: Training relating to lifting of 'stillages' more extensive than indicated in applicant's evidence. No instruction to other employees to not assist applicant with lifting 'stillages'. Applicant's evidence relating to exposure to concrete dust unreliable. No breach of implied term to provide safe and healthy workplace. Respondent acted promptly when issue of applicant not receiving ACC payments raised. Delays in commencing process lay with company responsible for aspects of managing work-related injuries. Respondent supportive and constructive towards applicant at all times. No breach of contract.;RAISING PERSONAL GRIEVANCE: Letter raised grievances applicant had with supervisor but did not raise grievances with respect to matters raised in statement of problem. Applicant's concerns about supervisor addressed. Grievances about work-related injuries not raised within 90 days. Subsequent letter not sufficient to raise grievance. Respondent did not consent to grievance being raised out of time. Grievance not raised within 90 days.;COUNTERCLAIM - PENALTY - GOOD FAITH: Applicant raised injury to shoulder with supervisor on night injury occurred. Applicant raised concerns about impact of concrete dust. Applicant did not fail to raise issues relating to health and safety in appropriate and timely manner. Applicant obstructive towards respondent and made managing applicant's rehabilitation extremely difficult. Applicant supplied doctor with inaccurate and misleading information relied on by doctor to produce medical certificates. Applicant breached EA and duty of good faith. Activities carried out during period of surveillance suggested applicant misrepresented physical capabilities. Important that employers and medical professionals able to trust veracity of information provided by employees when assessing employee's capacity to return to work. Appropriate to adopt global approach to setting penalty. Applicant's conduct deliberate, serious and sustained over long period of time. $1,500 penalty appropriate. |
| Result | Application granted (counterclaim - penalty - good faith) ; Penalty ($1,500)(payable to respondent) ; Applications dismissed (breach of contract)(raising personal grievance) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA;ERA s4A(a);ERA s114;ERA s114(1);ERA s133(1)(a);ERA s136(2);ERA s174 |
| Cases Cited | Commissioner of Police v Hawkins [2009] NZCA 209, [2009] 3 NZLR 381;Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC);Tan v Yang [2014] NZEmpC 65;Vulcan Steel Ltd v Wonnocott [2013] NZEmpC 15, (2013) 10 NZELR 659 |
| Number of Pages | 29 |
| PDF File Link: | 2015_NZERA_Auckland_39.pdf [pdf 298 KB] |