| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 74 |
| Hearing date | 5 May 2015:6 May 2015 (2 days) |
| Determination date | 08 June 2015 |
| Member | D Appleton |
| Representation | K Coulston ; R Webster |
| Location | Christchurch |
| Parties | Brine v South Pacific Meats Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Whether respondent impliedly consented - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent – Workplace injury - Whether respondent failed to provide safe workplace by exposing applicant to dangerous chemicals, failing to take steps to avoid further injury by not removing applicant from harmful environment, failing to remove applicant from harmful environment against medical advice and failing to provide prompt medical treatment – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of employment agreement (“EA”) and good faith – BREACH OF CONTRACT – Applicant sought damages for respondent’s breach of EA and statutory duties – Chiller hand |
| Abstract | AUTHORITY FOUND –RAISING PERSONAL GRIEVANCE: Applicant did not sufficiently raise grievance related to respondent’s failure to remove applicant from harmful environment against medical advice within 90 days. Respondent actively addressed allegation in witness statements. Respondent gave implied consent to grievance being raised out of time.UNJUSTIFIED DISADVANTAGE: Applicant’s symptoms caused by inhalation of chemicals. Respondent operated in accordance with safe practice and entitled to rely on expert advice regarding chemicals and safe use. Issues with chemicals not due to respondent’s failure to take steps to provide safe workplace. Respondent was not aware of seriousness of applicant’s symptoms. Respondent did not fail to provide immediate medical treatment. Respondent failed to remove applicant from harmful environment after applicant reported symptoms. Fair and reasonable employer would have removed applicant from harmful environment and could have undertaken steps to clear residual chemicals. Respondent failed to communicate internally about assigning other duties to applicant in light of medical advice that applicant be removed from harmful environment. Applicant unjustifiably disadvantaged by respondent’s failure to remove applicant from harmful environment and failure to communicate. REMEDIES: 50 per cent contributory conduct. $6,000 compensation appropriate.PENALTY – GOOD FAITH: Respondent’s breach of EA and good faith recognised in disadvantage remedies. No penalty.BREACH OF CONTRACT: Compensation for breach of EA already awarded and applicant could not show evidence of financial loss. No damages. No jurisdiction to consider claim of breach of statutory duty as tortious action. |
| Result | Application granted (unjustified disadvantage) ; Contributory conduct (50%) ; Compensation for humiliation etc. ($6,000) ; Applications dismissed (penalty-good faith)(breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(b);ERA s4A;ERA s103A;ERA s103A(1)(b);ERA s103A(2);ERA s114(1);ERA s114(3);ERA s114(4);ERA s124;ERA s134;ERA s161(1)(r);Health and Safety in Employment Act 1992 |
| Cases Cited | Attorney-General v Gilbert [2002] 2 NZLR 342 (CA);Commissioner of Police v Hawkins [2009] NZCA 209, [2009] 3 NZLR 381;Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC);;Hawkins v Commissioner of Police [2007] ERNZ 762 (EmpC);Salt v Fell [2006] ERNZ 449 (EmpC) |
| Number of Pages | 25 |
| PDF File Link: | 2015_NZERA_Christchurch_74.pdf [pdf 242 KB] |