| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 121/08 |
| Hearing date | 6 May 2008 |
| Determination date | 15 August 2008 |
| Member | P Montgomery |
| Representation | P Brown ; M Gray |
| Location | Christchurch |
| Parties | Alsop v Forbes & Davies Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Incapacity – Respondent argued employed applicant as long as possible before need to terminate employment relationship – Applicant claimed developed unavoidable health issues forcing time off work – Respondent accepted reasons for absences genuine, but argued absences totalling 68 days lengthy for period of employment – Respondent told applicant absences causing problems to operations and given final warning – Appeared absence issue resolved until applicant had motorcycle accident on way to work – Applicant injured 3 days later while competing in motorcycle event – Applicant provided medical certificate stating unable to resume duties for 14 days – Applicant provided 4 further extensions when first medical certificate expired – Respondent wrote to applicant seeking update on condition after obtained third extension – Respondent received no response from applicant, however, received medical certificate outlining extension and date when applicant would return to work – Respondent contacted applicant again but received non-committal response – Respondent received fifth extension advising applicant would be absent for further seven days – Respondent argued could not be sure applicant would return to work after seven days and respondent approaching heavy season – Respondent argued invoked clause in employment agreement (“EA”) stating could terminate employment if employee unable to perform duties for any reason and leave entitlements exceeded – Respondent also argued applicant’s actions in attending motorcycle competition showed no thought to consequences and contributed to absenteeism – Applicant claimed clause in EA unlawful and if had proper disciplinary meeting instead of telephone conversation would have brought support person – Authority found respondent obligated to base decision on accurate and up-to-date information known at time – Authority found application of clause in EA not mandatory but discretionary – Found clause itself did not provide justification for decision – Authority found issue of representation not an essential element of procedural fairness in case involving capacity – Authority found EA made clear absenteeism less serious misconduct and therefore not liable to incur summary dismissal – Authority found overstatement for applicant to say no reason to think would not return on date specified in final medical certificate – Authority found highly probable in light of unreliable information provided earlier by applicant respondent entitled to be sceptical about prognosis set out in final medical certificate – Authority did not accept unjust of respondent to call end to applicant’s employment – Dismissal justified – Warehouse assistant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Te Moana v GDC Communications Ltd unreported, P Stapp, 22 Dec 2003, WA 144A/03;Marshall v Harland & Woolff Ltd [1972] 2 All ER 715;Barry v Wilson Parking New Zealand (1992) Ltd [1998] 1 ERNZ 545 |
| Number of Pages | 13 |
| PDF File Link: | ca 121_08.pdf [pdf 52 KB] |