| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 228/06 |
| Hearing date | 6 Jun 2006 - 14 Jun 2006 (3 days) |
| Determination date | 03 July 2006 |
| Member | J Scott |
| Representation | J Hardaker ; A Hope |
| Location | Auckland |
| Parties | Waikato District Council v Gough |
| Summary | DISPUTE - Applicant sought determination that instruction given to respondent to relocate his dogs away from Council owned reserve and farm was lawful instruction – Respondent lived in house at reserve – Kept three “large and imposing” dogs on premises – Dogs were family pets and guard dogs - Number of incidents involving dogs rushing, endangering and attacking members of public and staff - One incident involved one dog pushing through fence and running at a TV crew – Another incident resulted in final written warning - Public made extensive use of Reserve – Authority had jurisdiction to determine matter - Instruction to relocate dogs was a lawful and reasonable instruction – Employer access to respondent – Obligation of good faith on parties - Rights of respondent as a tenant (including right to quiet enjoyment) had to be read in light of purpose for which tenancy existed – Though respondent may have not been explicitly told he must be accessible at home in an emergency situation, as only representative of Council permanently located at Reserve, was an implied obligation on him to be accessible, both at home and on the Reserve, in such circumstances – Council managers and staff had a right to call upon and meet with respondent at reasonable times for work related purposes at his house or on reserve – That right of access must be unimpeded access (free from risk of intimidation or attack by dogs or by revocation of implied right of access) – Members of public should also have access to help, through respondent at his home in emergency situation – This was not inconsistent with Residential Tenancies Act – Though not saying respondent was tied to reserve 24/7 - If individual employment agreement between parties was to be administered in accordance with its true intent, the house must be seen to be accessible (fences should be at a height consistent with keeping stock out (fences had been raised to keep dogs in) and warning signs (about dogs) should be removed) – Obligations under Health and Safety in Employment Act 1992 on respondent to ensure that no action or inaction on his part while at work caused harm to any other person – Dogs could reasonably be described as constituting actual and potential source of serious harm in workplace and applicant was obliged to take all practicable steps to eliminate hazard - Respondent’s proposals for dealing with dogs were only to isolate the hazard and were not sufficient to eliminate hazard – Parties directed to return to mediation - Farm manager |
| Result | Orders accordingly ; Costs reserved |
| Statutes | Dog Control Act 1996 s57A;ERA s4(1)(a);ERA s4(1A)(a);ERA s4(1A)(b);ERA s4(2);ERA s5;ERA s157;ERA s161(1);ERA s161(a);ERA s161(1)(r);HSE;Residential Tenancy Act 1986 s38 |
| Cases Cited | Central Cranes Ltd v Department of Labour [1997] ERNZ 520;Marshall v Gotham Co Ltd [1954] 1 All ER 937;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917;Wellington etc Clerical and Related Workers v College Group Limited [1984] ACJ 315 |
| Number of Pages | 17 |
| PDF File Link: | aa 228_06.pdf [pdf 99 KB] |