| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 446/05 |
| Hearing date | 1 Sep 2005 |
| Determination date | 18 November 2005 |
| Member | V Campbell |
| Representation | A Gutwin (in person) ; P Tremewan |
| Location | Auckland |
| Parties | Gutwin v The Fletcher Construction Company Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Alleged failure to allow applicant to return to work on light duties - Applicant suffered non-work related injury and unable to return to work because respondent maintained no light duties available - Respondent told ACC that job involving light duties would commence but did not make contact with applicant - ACC classified applicant as long-term maintenance claimant until he turned 65 when he was entitled to guaranteed retirement income - Respondent alleged applicant was paid long service leave in consideration of full and final settlement of cessation of employment - Respondent's stance contrary to respondent's other assertion that applicant remained an employee - Payment of long service leave was existing obligation and could not be used to show valuable consideration in settlement - Respondent's position resulted in applicant receiving guaranteed retirement income which was considerably less than ACC payment - Applicant disadvantaged by failure of respondent to allow him to return to work - Not enough for respondent to say there were no light duties for non-work related accidents - Remedies - Respondent ordered to take applicant back to work on light duties - Parties directed to mediation with leave reserved if parties unable to agree on return to work programme - BREACH OF CONTRACT - Applicant alleged entitled to redundancy compensation because site he was first employed to work on closed down - Applicant agreed to be transferred to other site - Not entitled to redundancy compensation - ARREARS OF HOLIDAY PAY - Applicant alleged he was owed payment for annual holidays to which he had become entitled but not yet taken - No holiday pay due until either applicant took holidays following return to work or employment with respondent ended - Project foreman |
| Result | Application granted (unjustified disadvantage) ; Application dismissed (breach of contract and arrears) ; Orders accordingly ; Costs reserved |
| Statutes | ERA s103(1)(b) |
| Cases Cited | Cabletalk Astute Network Services Ltd v Cunningham [2004] 1 ERNZ 506;Matthes v NZ Post Ltd [1994] 1 ERNZ 994;Wellington Area Health Board v Wellington Hotel IUOW [1992] 2 ERNZ 466 |
| Number of Pages | 7 |
| PDF File Link: | aa 446_05.pdf [pdf 31 KB] |