| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 70/04 |
| Hearing date | 13 May 2004 |
| Determination date | 23 June 2004 |
| Member | P Cheyne |
| Representation | J Shingleton ; N McPhail |
| Location | Christchurch |
| Parties | Pijpker v GL Bowron and Co Ltd |
| Summary | BREACH OF CONTRACT - UNJUSTIFIED DISADVANTAGE - Whether lawful to require applicant to take and respond to calls outside normal hours - Whether action breached obligation to maintain safe workplace - Claim for exemplary damages - Alleged serious sleeping problems caused by phone calls - Alleged salary recognised position required work outside normal hours - Verbal agreement to receive calls if production problems or in emergencies - Applicant not on call but could not deliberately avoid phone calls - Mutual expectation after hours calls were to be infrequent - Numerous calls unrelated to production problems and emergencies - Calls went beyond agreement - Insufficient evidence to determine unjustified disadvantage - Disadvantage grievance reserved for further investigation - Implied duty to take all reasonable steps to avoid exposing employees to risk of injury to physical and psychological health - Mechanisms to allow for time off in lieu to compensate for work outside normal hours - Applicant utilised time off in lieu - No breach of implied duty - Claim for exemplary damages not sustained by evidence - Respondent's conduct in response to refusal to take calls fell short of outrageous and unlawful behaviour as required by previous cases - Service engineer |
| Result | Application dismissed (Breach of contract) ; Application reserved (Unjustified disadvantage) ; Costs reserved |
| Cases Cited | A v Bottrill [2003] 2 NZLR 721;Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Brickell v Attorney-General [2000] 2 ERNZ 529;Commissioner of Police v Cartwright [2000] 2 ERNZ 106 ; [2001] 1 NZLR 265;Doel v New Zealand Refining Co Ltd [1999] 2 ERNZ 570;French v The Chief Executive of the Department of Corrections [2002] 1 ERNZ 325;Northland Co-Operative Dairy Co Ltd v NZ Dairy Workers' Union Inc [1995] 2 ERNZ 201;Winstanley v NZ Rail Ltd [1995] 1 ERNZ 582 |
| Number of Pages | 8 |
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