| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 356/08 |
| Hearing date | 24 Sep 2008 : 25 Sep 2008 (2 days) |
| Determination date | 16 October 2008 |
| Member | R Arthur |
| Representation | G Lloyd ; D Erickson |
| Location | Auckland |
| Parties | Warren v Lincoln Food Warehouse Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Incapacity - Applicant suffered wrist injury and off work for three months - Respondent did not want applicant returning to work until medically cleared as fully fit for usual tasks and hours - Respondent declined ACC funded work trial - Applicant returned to work but wrist injury reoccurred - Following month applicant began graduated return to work trial - In agreeing to work trial respondent set date for two months later for when applicant to be carrying out full duties - Applicant warned could be dismissed if unable to return to full duties by set date - Applicant reinjured wrist - Applicant’s specialist unable to see him until after respondent’s return to work date - Applicant’s doctor provided medical certificate stating applicant to be off work until saw specialist - Respondent met with applicant and union representative - Respondent considered medical information inconsistent and inconclusive, and dismissed applicant for incapacity - Respondent claimed could not reasonably have been expected to continue incurring significant costs keeping applicant’s position open given uncertainty on when would fully recover and “apparent failure” of gradual return to work plan - Authority found no issue of procedural unfairness - Applicant claimed no substantive justification for dismissal - Authority found decision to dismiss not what fair and reasonable employer would have done in all circumstances at time for five reasons - Firstly, respondent’s refusal to start graduated return to work programme earlier or arrange light duties sooner likely to have had impact on what respondent deemed “apparent failure” of later ACC-funded work trial - Found medical advice was graduated return to work best way to get applicant back to full time work - Found refusal to allow graduated return did not assist and may have delayed full recovery - Found fair and reasonable employer would have taken more account of medical advice and acted on return to work programme earlier - Secondly, Authority found respondent’s deadline for return to full duties and hours on which it based dismissal decision set on arbitrary basis - Thirdly, found respondent did not wait short period for further information from applicant’s specialist, or take steps to get own independent information when was uncertainty as to when applicant could return to work - Fourthly, Authority found respondent’s evidence applicant’s absences causing additional business costs unconvincing - Fifthly, Authority found while approximately nine month incapacity relatively long period, not inherently beyond reasonable period in context of contractual obligations, nature of business, and nature of position - Dismissal unjustified - Remedies - No contributory conduct - Applicant sought reinstatement - Authority rejected respondent’s reasons for arguing reinstatement impractical - Parties to discuss and agree appropriate measures to reacclimatise applicant to workplace and full range of duties - Applicant to be reinstated no later than 14 days after date of determination - Applicant claimed reimbursement of lost wages for period after ACC earnings related compensation ceased - Authority found applicant sufficiently attempted to mitigate loss - Three months reimbursement of lost wages awarded - Limited evidence as to humiliation, loss of dignity and injury to feelings applicant suffered - However, found applicant felt humiliated by dismissal and distressed by consequent financial pressure once ACC earnings related compensation ceased - $3,000 compensation appropriate - Butcher |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (3 months) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s128 |
| Cases Cited | Auckland and Tomoana Freezing Works IUOW v Wilson Foods Limited [1990] 2 NZILR 939;Hoskin v Coastal Fish Supplies Limited [1985] ACJ 124;McKean v Board of Trustees of Wakaaranga School [2007] 1 ERNZ 1;Sefo v Sealord Shellfish Limited [2008] ERNZ 178;Taylor v Air New Zealand Ltd, unreported, Colgan J, 28 Oct 2004, AC 61/04 |
| Number of Pages | 15 |
| PDF File Link: | aa 356_08.pdf [pdf 50 KB] |