| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 57/06 |
| Hearing date | 29 Sep 2005 - 30 Sep 2005 (2 days) |
| Determination date | 01 March 2006 |
| Member | Y S Oldfield |
| Representation | M Ryan ; R Chan |
| Location | Auckland |
| Parties | Foster v Chief Executive of the Department of Corrections |
| Summary | RAISING OF PERSONAL GRIEVANCE - Concern over unit manager's conduct raised at meeting within time limit but after discussion union representative happy with what was in place, inconsistent with raising grievance - Grievance actually raised in letter sent outside time limit - Respondent gave implied consent to raise grievance out of time as sought to resolve contended grievance in letter of reply and by subsequent conduct - Action was commenced within 3 year time frame - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged by conduct of unit manager and respondent's failure to provide safe and healthy workplace - Applicant seriously assaulted by inmate and attacked again five years later - After psychiatric and psychological assessment applicant on leave for three and a half years - ACC accepted personal injury claim and applicant received earnings related compensation until resumed work - Applicant alleged respondent failed to take all reasonable steps to minimise stress and anxiety - Inmate who attacked him returned to Special Needs Block where applicant worked - Special Needs Block only appropriate place for inmate and as respondent met obligation to inform applicant there was no unjustified action - Applicant told being transferred to another unit away from support of colleagues - Applicant's contract permitted transfer to another unit, respondent had good operational reasons and reasonable for unit manager to think it would be in applicant's best interests so no unjustified action - Applicant alleged disadvantaged by conduct of unit manager generally and particularly by argument at fire training - Evidence did not support allegation unit manager made derogatory remarks about applicant but behaviour of applicant and unit manger at fire training not professional and unit manager's manner inappropriate given applicant's health status - Unit manager's actions exacerbated applicant's pre-existing condition but to compensate for this would be to indirectly compensate for consequences of personal injury - Given pre-existing condition workplace was unsafe for applicant but harm not reasonably foreseeable - Even if wrong about that, consequences of any breach of duty already compensated for by ACC - Claim for compensation for hurt and humiliation statute barred - Length of service more than eleven years - Prison officer |
| Result | Application dismissed ; Costs reserved |
| Statutes | Accident Rehabilitation and Compensation Insurance Act 1992 s14(3);ERA s114(6);Limitation Act 1950 s4(7) |
| Cases Cited | Jack v Attorney-General in respect of the Department for Courts [2002] 1 ERNZ 720;Jacobsen Creative Surfaces Ltd v Findlater [1994] 1 ERNZ 35;Phillips v Net Tel Communications [2002] 2 ERNZ 340 |
| Number of Pages | 11 |
| PDF File Link: | aa 57_06.pdf [pdf 67 KB] |