| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 163/08 |
| Hearing date | 20 Oct 2008 |
| Determination date | 28 October 2008 |
| Member | J Crichton |
| Representation | N Donaldson ; no appearance |
| Location | Nelson |
| Parties | Jope v Hebberd Marine Farm Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Incapacity - No appearance for respondent - Applicant suffered work related accident when dislocated knee - Applicant received ACC earnings related compensation and off work - Applicant claimed ensured respondent’s principal (“H”) received all medical certificates and other information about injury - H received medical certificate stating applicant to be off work for further three weeks - H phoned applicant and informed him unable to keep applicant’s job open and applicant dismissed - Applicant raised personal grievance - Applicant had history of knee dislocations but indicated knee last dislocated seven or eight years ago - Authority found applicant not asked if had any physical limitations when employed - Found applicant under no obligation to disclose information if not asked - Authority found applicant’s injury did not prevent him from working in industry, as new employment comparable to position with respondent - Authority found H’s actions in dismissing applicant not those of fair and reasonable employer - Found no investigation into how long applicant would be away from work - Found no request for further particulars from applicant - Found H gave no indication becoming concerned about applicant’s absence - Authority found in absence of proper process, decision to dismiss for incapacity unjustified as failed fundamental test in s103A Employment Relations Act 2000 - H’s claim had to employ two new barge hands to replace applicant rejected - Authority found H employed one new barge hand who only wanted temporary work and would have left when applicant returned - Dismissal unjustified - Remedies - Authority found while applicant’s comments in letter sent following dismissal ill considered and in poor taste, applicant apologised and comments had no bearing on decision to dismiss - No contributory conduct - $5,000 compensation appropriate in circumstances - Authority found applicant gained employment as soon as fit for work but at lower rate and with difference in benefits - $2,000 reimbursement of lost wages appropriate - COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought costs of $6,000 - Authority found no reason to depart from daily tariff approach - Respondent to pay $1,000 contribution to applicant’s costs - Deck hand |
| Result | Application granted ; Reimbursement of lost wages ($2,000) ; Compensation for humiliation etc ($5,000) ; Costs in favour of applicant ($1,000) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s157;ERA s158;ERA s160;ERA s173(2A) |
| Cases Cited | Barnett v Northern Regional Trust Board of the Order of St John [2003] 2 ERNZ 730;Barry v Wilson Parking New Zealand (1992) Ltd [1998] 1 ERNZ 545 |
| Number of Pages | 12 |
| PDF File Link: | ca 163_08.pdf [pdf 40 KB] |