| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 269 |
| Hearing date | 24 Aug 2015 - 25 Aug 2015 (2 days) |
| Determination date | 18 September 2015 |
| Member | Rachel Larmer |
| Representation | F Meikleham ; F Clifton |
| Location | Tauranga |
| Parties | Abbot v The Pallet Company (BOP) Ltd (Previously known as Bay Pallets (2012) Ltd) |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by undue stress, respondent preventing applicant from returning to work and respondent accessing private information – UNJUSTIFIED DISMISSAL – Abandonment - Applicant claimed unjustifiably dismissed by respondent – Failure to provide medical certificate - Company director |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Applicant had duty as per job description to manage stress himself or else identify it to other directors. Applicant failed to do so. Respondent unaware that applicant suffering from workplace stress. Respondent did not prevent applicant from returning to work while on sick leave, nor did applicant express wish to return to work while on sick leave. Respondent had valid reasons for accessing applicant’s business email but let other employee access applicant’s personal emails via business account and employee used personal information against applicant. Respondent vicariously liable for employee’s actions. Respondent could have taken more care to prevent employee from accessing applicant’s personal information. Applicant could have been more forthcoming about specific items of concern in email, state why he was concerned and tried to secure his personal information more thoroughly. Unjustified disadvantage. REMEDIES: 50 per cent contributory conduct. $3,500 compensation appropriate.;UNJUSTIFIED DISMISSAL: Respondent should have been aware that applicant away from work with good cause as applicant previously provided medical certificates and had indicated further certificates coming. Respondent required to follow up about why certificate not received and make reasonable inquiries into applicant’s whereabouts before able to rely on abandonment clause in employment agreement. Respondent also reconfirmed dismissal upon receipt of final certificate, despite having opportunity to reconsider dismissal. Respondent’s actions amounted to sending away of applicant. Respondent failed to provide all relevant information, opportunity to comment, sufficiently investigate, raise concerns with applicant and genuinely consider explanation if provided. Applicant uncooperative with respondent about sick leave and medical certificates, allowed personal problems to impact on work and did not assist respondent to continue business in applicant’s absence. Dismissal unjustified. REMEDIES: 60 per cent contributory conduct. $2,000 compensation appropriate. |
| Result | Applications granted ; Contributory conduct (50%)(unjustified disadvantage)(60%)(unjustified dismissal) ; Compensation for humiliation etc ($3,500)(unjustified disadvantage)($2,000)(unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A(3);ERA s124 |
| Number of Pages | 19 |
| PDF File Link: | 2015_NZERA_Auckland_269.pdf [pdf 206 KB] |