| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 211/05 |
| Hearing date | 19 Oct 2004 |
| Determination date | 08 June 2005 |
| Member | Y S Oldfield |
| Representation | B Spong ; S Hornsby |
| Location | Auckland |
| Parties | Clarke v New Zealand Trade and Enterprise |
| Summary | UNJUSTIFIED DISMISSAL - Medical incapacity - After nine months employment with respondent plaintiff off work for next nine months due to illness and various injuries - Medical report indicated part-time return to work with gradual increase of hours possible - Further three months complete absence likely in near future due to pending operation - Respondent advised plaintiff role not capable of part-time performance - Redeployment suggestions of three alternative roles suitable for part-time rejected by plaintiff - Possibility of medical retirement raised by respondent - Suggestion not favourably received but plaintiff agreed to consider matter once amount of termination pay known - Plaintiff's issues with amount proposed addressed by respondent with new offers - Last offer expressed as being in full and final settlement" - Employment to terminate on date final payment made - Plaintiff did not sign in space provided but initiated no further correspondence and took no steps to return final pay once deposited in bank account - Respondent had undertaken proper assessment of plaintiff's condition and fully considered alternatives to dismissal - Prospect of return to full duties in foreseeable future uncertain - Dismissal for incapacity substantively justifiable - Whether dismissal or termination by accord and satisfaction - Plaintiff's conduct of such nature as to induce respondent to believe plaintiff accepted last offer in full and final settlement - Silence after last offer contrasted with previous prompt and clear communication of disagreements with respondent - Exit package well in excess of contractual entitlements and signified purchase by respondent of release from any obligations otherwise under - Reasonable for respondent to conclude had negotiated agreed exit - Accord and satisfaction - Plaintiff barred from bringing personal grievance - Business development advisor" |
| Result | Application dismissed ; Costs reserved |
| Cases Cited | Hoskin v Coastal Fish Supplies Ltd [1985] ACJ 124;Wilson v Sleepyhead Manufacturing Co Ltd [1992] 3 ERNZ 614 |
| Number of Pages | 7 |
| PDF File Link: | aa 211_05.pdf [pdf 43 KB] |