| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 26 |
| Hearing date | 15 & 16 Dec 2015 (2 days) |
| Determination date | 22 January 2016 |
| Member | Eleanor Robinson |
| Representation | T Oldfield ; K Dunn |
| Location | Auckland |
| Parties | Kamizona v Norske Skog Tasman Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed unjustifiably disadvantaged by way dismissal announced – Applicant claimed unjustifiably dismissed by respondent – Forklift and truck driver |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Disadvantage claim subsumed into dismissal claim. Applicant had permanent medical issues making him medically unfit for driving. Reasonable for respondent to rely on medical expertise of doctor. Dismissal conclusion that fair and reasonable employer could have reached in all circumstances. Fair and reasonable employer would have had other employee in job swap proposal undergo full medical examination before rejecting job swap. Inappropriate for respondent to tell applicant of possibility of termination of employment in such informal manner and public place. Respondent should have obtained second medical opinion and allowed applicant to take practical driving test prior to dismissing applicant. Respondent did not act in procedurally fair manner. Defects not minor. Applicant unjustifiably dismissed. REMEDIES: Reinstatement ordered subject to conditions regarding applicant’s fitness to perform duties. Leave reserved to determine other remedies once reinstatement determined. |
| Result | Application granted (unjustified dismissal) ; Reinstatement ordered ; Application dismissed (unjustified disadvantage) - Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s125 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160, [2011] ERNZ 466 |
| Number of Pages | 24 |
| PDF File Link: | 2016_NZERA_Auckland_26.pdf [pdf 270 KB] |