| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 330 |
| Hearing date | 22-Aug-16 |
| Determination date | 27 September 2016 |
| Member | V Campbell |
| Representation | A Hope ; S Scott |
| Location | Auckland |
| Parties | Hergatt v Wanda Hendrikse and James Cochrane t/a McBreens Solicitors |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Incapacity - Applicant claimed unjustifiably disadvantaged by failure to provide safe working environment and failure to complete ACC documentation - Applicant claimed unjustifiably dismissed by respondent – Legal secretary |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISMISSAL: Respondent not given proper opportunity to rectify issue with applicant’s work station. Injury not caused by workplace. Respondent did not complete ACC form as unnecessary to do because ACC already reached conclusion about applicant’s claim No unjustified disadvantage due to failure to provide safe workplace or complete ACC documentation. No unjustified disadvantage. Insufficient work to justify having full-time legal secretary as much work passed to junior staff. Redundancy for genuine reasons. Selection criteria never given to applicant. Decision to dismiss made prior to any consultation process. As applicant continued to be employed by respondent, applicant unjustifiably disadvantaged by process. Respondent did not request or receive information regarding extent of applicant’s injuries. Only information medical certificates indicating applicant would shortly return to work. Dismissal unjustified. REMEDIES: No contributory conduct. $7,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($7,000) ; Application partially granted (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s103A ; ERA s124 |
| Cases Cited | Brake v Grace Team Accounting Ltd [2013] NZEmpC 81, [2013] ERNZ 170 ; Grace Team Accounting Ltd v Brake [2014] NZCA 541, [2015] 2 NZLR 494 ; Hoskin v Coastal Fishing Supplies Ltd [1985] ACJ 124 (AC) |
| Number of Pages | 16 |
| PDF File Link: | 2016_NZERA_Auckland_330.pdf [pdf 96 KB] |