| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 64/08 |
| Hearing date | 26 Apr 2008 |
| Determination date | 12 May 2008 |
| Member | G J Wood |
| Representation | B Buckett ; H Kynaston |
| Location | Wellington |
| Parties | Hunter v Store-It Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Incapacity - Applicant alleged unfair treatment led to her becoming ill - Also claimed dismissed when illness prevented her returning to work - Performance issues raised with applicant shortly after began job - Applicant had underlying medical condition exacerbated by stress - Found job and manager stressful but did not raise matter with respondent - Took two weeks sick leave - Upon return, respondent sought to discuss performance - Applicant went back on sick leave and raised disadvantage grievance - Medical report indicated unlikely to be able to return soon - Applicant proposed mediation - However, respondent advised of preliminary decision to dismiss her due to length of absence, inability to arrange temporary cover and uncertainty over her return - Applicant dismissed on notice when did not respond - Applicant not required to work in unsafe environment - Performance concerns legitimate - Given applicant did not raise fact suffering from workplace stress not foreseeable by respondent she would have suffered the psychological difficulties she had - No serious and sustained breach of duty - Decision to terminate employment for incapacity was what reasonable employer would have done in all the circumstances - Applicant’s position key to respondent’s small business - Lengthy absence and short term employment - Return uncertain and applicant required workplace issues to be sorted first - Respondent entitled and indeed required to make inquiries into applicant’s prognosis for a return to work - Respondent disclosed to applicant the difficulties absence caused and informed her position could not be held open - Dismissal not predetermined - While respondent should have attended mediation before dismissal applicant in no medical condition to do so - To find termination for incapacity unjustified on procedural grounds would be to require too much of fair and reasonable employer, given its size and pressures it faced at the time - Dismissal justified - Facility manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Attorney-General v. Gilbert [2002] 1 ERNZ 31;Edmonds v Attorney-General [1998] 1 ERNZ 1;Hosin v Coastal Fish Supplies Ltd [1985] ACJ 124;Knight v Gates unreported, Colgan J, 15 July 1997, AEC 71/9 |
| Number of Pages | 13 |
| PDF File Link: | wa 64_08.pdf [pdf 46 KB] |