| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 140 |
| Hearing date | 9-Jun-15 |
| Determination date | 22 September 2015 |
| Member | Helen Doyle |
| Representation | D Beck ; J Behrnes |
| Location | Christchurch |
| Parties | Silcock and Anor v Exterior Building Care Goleman Ltd |
| Other Parties | Milner |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicants claimed unjustifiably dismissed by respondent – Failure to provide safe workplace – Asbestos – PENALTY – Applicant sought penalty for respondent’s breach of good faith - Industrial abseilers |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicants resigned mainly due to health and safety concerns but also because they had not had pay or work for some time. Respondent failed to test properly for asbestos, and then failed to warn applicants promptly after becoming aware of presence of asbestos. Respondent breached duty to provide safe workplace. Respondent failed to provide work after applicants complained about asbestos and did not provide reasonable notice of unavailability of work for first applicant, in breach of relevant employment agreement. Respondent’s breaches caused applicants to resign. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicants reimbursement of lost wages, quantum to be determined. $9,000 compensation appropriate for each applicant.;PENALTY: Respondent’s failure to communicate about asbestos serious, sustained and unacceptable, but may not have been deliberate. No intention to undermine employment relationship. No penalty. |
| Result | Application granted (unjustified dismissal) ; Orders made ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($9,000)(first applicant)($9,000)(second applicant) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s103A;ERA s124;HSE |
| Cases Cited | Attorney-General v Gilbert [2002] 2 NZLR 342 (CA);Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers Inc [1994] 2 NZLR 415 (CA);Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Waikato District Health Board v The New Zealand Public Service Association Inc [2008] ERNZ 80 (EmpC) |
| Number of Pages | 25 |
| PDF File Link: | 2015_NZERA_Christchurch_140.pdf [pdf 288 KB] |