| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 266 |
| Hearing date | 19 Jul 2017 - 21 Jul 2017 and 28 Jul 2017 (4 days) |
| Determination date | 01 September 2017 |
| Member | J Trotman |
| Representation | S Perese ; E Burke |
| Location | Auckland |
| Parties | Vailua v Hubbard Foods Ltd |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed unjustifiably disadvantaged by respondent’s failure to provide safe workplace – PENALTY – Applicant sought penalty for respondent’s breach of good faith – Process Worker |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE: Applicant unjustifiably disadvantaged by respondent’s failure to take reasonable steps to provide a safe work place. Applicant suffered workplace personal injury. Respondent knew or ought to have known that there was a risk the applicant would suffer gradual process injury. Applicant not provided with suitable health and safety training to minimise the risk of workplace injury. Applicant unjustifiably disadvantaged . Not satisfied respondent offered applicant suitable alternative role. Applicant’s pre-injury role was not accepted to be redundant. Respondent failed to raise concerns with applicant before dismissal and gave him no opportunity to respond. Respondent’s failure to dismiss in all circumstances was not fair and reasonable. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $11,076 reimbursement of lost wages. $25,000 compensation appropriate. PENALTY: Failure to consult applicant about introduction of new equipment was not intended to undermine employment relationship. No breach of good faith. No penalty. |
| Result | Application granted ; Reimbursement of lost wages ($11,076) ; Compensation for humiliation etc ($25,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Accident Compensation Act 2001 s317;ERA s4;ERA s103A;ERA s103A(5);ERA s124;ERA s128(2);ERA s134;ERA s174E;Health and Safety in Employment Act 1992 s2A(2);Health and Safety in Employment Act 1992 s6 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 (CA);Davis v Commissioner of Police [2013] NZEmpC 226;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Kim v Thermosash Commerical Ltd [2011] NZEmpC 169;Lal v The Warehouse Ltd [2017] NZEmpC 66;Stormont v Peddle Thorp Aitken Ltd [2017] NZEmpC 71;Robinson v Pacific Seals New Zealand Ltd [2014] NZEmpC 99;Xtreme Dining v Dewar [2016] NZEmpC 136 |
| Number of Pages | 26 |
| PDF File Link: | 2017_NZERA_Auckland_266.pdf [pdf 198 KB] |