| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 290 |
| Hearing date | 18 & 19 May 2016 |
| Determination date | 25 August 2016 |
| Member | R Arthur |
| Representation | S Schofield; M Hammond, K McLuskie |
| Location | Hamilton |
| Parties | Nelson v Open Country Dairy Ltd |
| Summary | DISCRIMINATION – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed unlawful discrimination on ground of disability – Applicant claimed unjustifiably disadvantaged by denial of flexibility to work different hours, exclusion from lunchroom, denial of new phone, exclusion from training, exclusion from work social activities and denial of redeployment – Applicant claimed unjustifiably dismissed by respondent – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith - BREACH OF CONTRACT – Applicant sought damages for respondent’s breach of contract by failing to provide safe workplace- Maintenance technician |
| Abstract | AUTHORITY FOUND –DISCRIMINATION – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant did not ask to work longer hours, so respondent cannot have denied flexibility of hours. Applicant not unjustifiably disadvantaged. Respondent’s concerns about potential for applicant to have accident in normal lunchroom reasonable. Applicant’s suggestion of building ramp or handrail not cost-effective or necessary. Applicant not unjustifiably disadvantaged. Applicant may have been provided with new phone if applicant had returned to full-time work. Applicant not unjustifiably disadvantaged. Training took considerably longer than applicant’s daily work hours at time. Other courses held on site before and since. Applicant not unjustifiably disadvantaged. Work drinks held in afternoon while applicant worked mornings and then returned home. Applicant could have arranged to work afternoons occasionally to attend drinks but did not request to do so. Applicant did not make suggestion about alternative activities to right person. Applicant not unjustifiably disadvantaged. No discrimination. Respondent failed to properly consider providing applicant with “outplacement” assistance after decision to dismiss. Applicant unjustifiably disadvantaged. Respondent’s conclusion about applicant’s fitness to return to work within range of responses that fair and reasonable employer could have reached at time. Respondent followed fair process. Dismissal justified. REMEDEIS: $1,000 compensation for humiliation etc. appropriate. $2,000 compensation for loss of benefit appropriate.PENALTY – GOOD FAITH: No breach of sufficient to warrant penalty. No penalty.BREACH OF CONTRACT: Claims arose out of injury suffered at work and amounted to compensation for personal injury Claim barred by s 317 Accident Compensation Act 2001. No damages. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc. ($1,000) ; Compensation for loss of benefit ($2,000) ; Applications dismissed (discrimination)(unjustified dismissal)(penalty)(breach of contract) |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(a) ; ERA s103(1)(c) ; ERA s103(1)(h) ; ERA s103A(1) ; ERA s104 ; ERA s105(1)(h) ; ERA s106(f) ; ERA s114(3) ; ERA s115 ; ERA s122 ; ERA s124 ; ERA s174E ; Accident Compensation Act 2001 s317 ; Accident Compensation Act 2001 s317(1) ; Accident Compensation Act 2001 s317(2)(b) ; Accident Compensation Act 2001 s317(2)(c) ; Human Rights Act 1993 s29 ; Human Rights Act 1993 s35 |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 3 NZLR 276 (CA) ; Barry v Wilson Parking New Zealand (1992) Ltd [1998] 1 ERNZ 545 (EmpC) ; Brittain v Telecom Corporation of New Zealand Ltd [2002] 2 NZLR 201 (CA) ; Fagotti v Acme Ltd [2015] NZEmpC 135 ; Hoskins v Coastal Fish Supplies Ltd [1985] ACJ 124 (AC) ; Kim v Thermosash Commercial Ltd [2011] NZEmpC 169 ; McAdie v Royal Bank of Scotland [2007] EWCA Ci 806 ; McGrory v Ansett New Zealand Ltd [1999] 2 NZLR 328 (CA) ; Mitchell v Blue Star Print Group (NZ) Ltd [2008] ERNZ 594 ; Nathan v C3 Ltd [2015] NZCA 350, [2015] ERNZ 61 ; PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC) ; Robinson v Pacific Seals (NZ) Ltd [2013] NZERA Wellington 101 ; Robinson v Pacific Seals (NZ) Ltd [2014] NZEmpC 99, [2014] ERNZ 813 ; Royal Bank of Scotland v McAdie [2006] UKEAT 0268_06_2911 ; Smith v Air New Zealand Ltd [2011] NZCA 20, [2011] 2 NZLR 171 |
| Number of Pages | 30 |
| PDF File Link: | 2016_NZERA_Auckland_290.pdf [pdf 409 KB] |