| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 424/05 |
| Hearing date | 18 Aug 2005 |
| Determination date | 21 October 2005 |
| Member | V Campbell |
| Representation | S Menzies ; D Alderslade |
| Location | Auckland |
| Parties | Kenehan v Waikato District Health Board |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Medical reaction to use of cleaning solution - Ongoing health problems - Time off on sick leave - Taken off cleaning duties - Applicant felt was not believed by respondent - No evidence that respondent did not believe applicant - Alleged failure to provide healthy and safe work environment - Alleged breach of duty of good faith - Whether agreed to fixed term contract - At time of entering into employment agreement applicant could not have had a legitimate expectation of ongoing employment - Applicant resigned but was not required to provide full one months notice due to end of fixed term being imminent - OSH investigation revealed that while cleaning solution was being used at a higher concentration than provided in the respondent's policy, was within range provided for on the product label - However, was critical of respondent for not providing copies with sheets about cleaning solution - Not satisfied was any breach, or if was breach, not of sufficient seriousness to amount to constructive dismissal - UNJUSTIFIED DISADVANTAGE - Common ground that applicant was not told at commencement of employment about hazards associated with use of cleaning product - Satisfied applicant exposed to high levels of concentration but not outside acceptable levels - Could not disregard information of independent specialists who stated categorically that once removed from exposure, health problems should have resolved - Respondent requested applicant to undergo further tests to ascertain cause of health problems but she refused - No disadvantage - GOOD FAITH - No evidence at all to support contention that respondent breached obligations of good faith |
| Result | Application dismissed (Unjustified dismissal) ; Application dismissed (Unjustified disadvantage) ; Costs reserved |
| Statutes | ERA s66;ERA s103(1)(b);HSE |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland Shop Employees IUOW v Woolworths [1985] ACJ 963;Matthes v NZ Post Ltd [1994] 1 ERNZ 994;Wellington Area Health Board v Wellington Hotel etc IUOW [1992] 2 ERNZ 466 |
| Number of Pages | 11 |
| PDF File Link: | aa 424_05.pdf [pdf 49 KB] |