| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 30/05 |
| Hearing date | 18 Feb 2005 |
| Determination date | 23 February 2005 |
| Member | D Asher |
| Representation | T Petherick ; D Stewart |
| Location | Napier |
| Parties | Harbord v Waste Management Ltd |
| Summary | UNJUSTIFIED DISMISSAL - HEALTH AND SAFETY IN EMPLOYMENT - Constructive dismissal - Bullying by co-worker - Co-worker repeatedly threatened to kill applicant - Threats taken seriously as co-worker strong and believed to have gang connections - Told supervisor who said he would speak to co-worker - Supervisor forgot to speak to co-worker and did not pass on complaint to new supervisor - Threats continued for nearly one month - New supervisor aware of ongoing harassment but did not want to act until received complaint from applicant - Applicant complained to new supervisor but resigned next day before supervisor could tell him he had spoken to co-worker - After resignation prescribed sleeping tablets and antidepressants and had psychiatric counselling - Applicant resigned because respondent acted in breach of duty to take all practicable steps to ensure his safety while at work - Hazard was bullying which amounted to psychological assault - Also duty in employment agreement to provide safe workplace - Applicant met his obligations by advising respondent of hazard - Respondent had obligation to immediately investigate serious allegation and take steps if satisfied risk existed - Failure to do so unconscionable - Dismissal unjustified - Remedies - No jurisdiction to grant punitive damages - Compelling evidence of impact of threats and respondent's breach - Significant award appropriate - Applicant not fit to undertake work for some time because of ill-health entirely attributable to respondent's failure - Applicant entitled to lost remuneration from date of resignation until date resumed employment - Truck driver |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined by parties) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Statutes | HSE s2;HSE s6;HSE s19 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;Attorney-General v Gilbert [2002] 1 ERNZ 31;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168;Gilbert v Attorney-General in respect of the Chief Executive of the Department of Corrections unreported, Colgan J, 21 June 2004, AC 49/00;Gilbert v Attorney General in respect of the Chief Executive Officer of the Department of Corrections unreported, Colgan J, 4 December 2004, AC 63/03;Western Mailing Ltd v Subritzky [2003] 2 ERNZ 465;Walker v Northumberland County Council [1995] 1 All ER 737 |
| Number of Pages | 11 |
| PDF File Link: | wa 30_05.pdf [pdf 45 KB] |