| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 268/06 |
| Hearing date | 14 Jun 2006 |
| Determination date | 21 August 2006 |
| Member | A Dumbleton |
| Representation | G Lloyd ; G Steele |
| Location | Auckland |
| Parties | McGovern v Tachikawa Forest Products |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal on medical grounds - Applicant unable to fully perform job due to injury - Respondent created position to allow for recovery - No time limit placed on continuation of employment - Union supplied list of jobs applicant could and could not do - Consideration given to list unsatisfactory and unfair - Reasonable employer would have ensured fully understood information - List, and respondent's consideration of it, within good faith provisions s4 Employment Relations Act 2000, particularly s4(1A) - While list emanated from applicant he should have had opportunity to comment on conclusions likely to bear on decision to terminate - Failure breach of good faith and contrary to actions of fair and reasonable employer - Dismissal unjustified - Remedies - Reinstatement to pre-injury position impracticable - Not open to reinstate applicant to position performing immediately before dismissal - If reinstated to that position, still open to respondent to conclude temporary position could no longer be held open - Colleagues' statement had no problem covering heavier work taken into account - No duty or obligation to survey employees about matter - Risks in conducting survey of that nature - Overall consideration was on information respondent had, likelihood applicant able to return to previous job not strong - Reinstatement declined - Applicant not totally unprepared for dismissal - Upset most by timing - Relevant to consider might still have been dismissed with fair process - Applicant could be compensated for loss of chance to have full input into decision-making, particularly in respect of list, but not for longer term loss of career - At most lost chance of remaining employed another two or three months - Neither respondent or union to fully bear blame for applicant being told decision second-hand through union - Length of service not specified - Saw doctor |
| Result | Application granted ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Statutes | ERA s4;ERA s4(1A);ERA s103A |
| Cases Cited | Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 6 |
| PDF File Link: | aa 268_06.pdf [pdf 35 KB] |