| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 105/08 |
| Hearing date | 13 Feb 2008 : 16 May 2008 (2 days) |
| Determination date | 21 July 2008 |
| Member | H Doyle |
| Representation | T Wilton ; B Simmonds |
| Location | Invercargill |
| Parties | McAtear v New Zealand Aluminium Smelters Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed disadvantaged when managers (“R” and “C”) failed to rotate applicant off smelter fire work when requested – Applicant claimed suffered heat rash due to failure – Applicant claimed also disadvantaged by incident when directed to heavy lifting which medical certificate advised against – Respondent argued applicant failed to carry out reasonable expectation to avoid exacerbating injuries – Applicant had previously self managed heat rash condition by requesting rotation to position away from fire – Authority found evidence supported no formal rotation system – R argued advised by C that expectation was employees in applicant’s position to be near fires – R argued business reasons why rotation not always possible – No dispute applicant told R wanted to be rotated away from fires in summer – Applicant claimed provided medical certificate to respondent – Respondent argued never received medical certificate until parties met for mediation – Authority found more likely than not applicant presented R with medical certificate – Authority found on same day first medical certificate provided, C insisted applicant attend nurse at on site medical centre – Subsequently, applicant attended own doctor who put applicant off work – Applicant later met with on site doctor who provided second medical certificate that applicant unfit for duties – Respondent organised dermatologist appointment for applicant when rash returned upon applicant’s return to work – Dermatologist confirmed rash due to heat – ACC accepted applicant’s personal injury claim – Authority found respondent had obligation to provide safe work conditions and not expose employees to risk of injury or further injury – Authority noted good steps taken by respondent in having on-site medical centre and arranging dermatologist – However, no specific steps taken in terms of rotation to prevent or minimise heat rash before medical intervention required – Authority found failure to take positive steps after request made from doctor regarding rotation, a deliberate course of behaviour rather than mere negligence – Found respondent’s actions disadvantaged applicant because made rash unmanageable before medical intervention required – Found respondent breached obligation to provide safe workplace – Applicant claimed put on lifting restriction following non-work injury – Applicant claimed injured arm when instructed by R to lift heavy equipment – R argued told applicant to wait until co-workers called before attempted lifting – C argued difficult to verify information provided by R and applicant – ACC accepted claim of aggravation to applicant’s arm injury – Authority accepted applicant under some pressure to “give it a go” – Authority found pressuring employee suffering known injury to undertake action that could aggravate injury disadvantaged employee – Found respondent’s actions breached duty to avoid exposing applicant to unnecessary risk of further injury to elbow – Authority found both disadvantages unjustified – Remedies – Authority found applicant not entitled to compensation for elbow injury itself – Found no contributory conduct – Found $5,000 compensation appropriate for loss of dignity and injury to feelings relating to first incident – Authority found applicant should have refused to undertake lifting of heavy equipment when asked by R – Authority found evidence did not support compensation award for injury sustained when lifted heavy equipment – Process controller |
| Result | Application granted (Disadvantage) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Number of Pages | 15 |
| PDF File Link: | ca 105_08.pdf [pdf 48 KB] |