| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 19/09 |
| Hearing date | 16 Oct 2008 |
| Determination date | 24 February 2009 |
| Member | P Cheyne |
| Representation | D Beck ; S Turner |
| Location | Christchurch |
| Parties | Parish v Telecom New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Incapacity – Applicant claimed unjustifiably dismissed following medical incapacity – Applicant injured back at staff social function in 2003 – Applicant reduced hours, received leave and resumed full time work in 2004 – Applicant had second accident aggravating injury in 2006 – Applicant certified as unfit for work and took six weeks sick leave in 2007 then resumed full time work – Worksite assessment report stated applicant’s work station well set up, applicant’s manager (“W”) and colleagues supportive and recovery may take 6 to 12 months – Applicant later ceased work to undergo rehabilitation – Medical certificates provided for four months leave but no date for return to work set – W contacted applicant several times to discuss applicant’s treatment and recovery – W contacted applicant’s ACC case manager who stated applicant needed several months before return to work –Applicant certified unfit for work for further four months – W called applicant notifying possible termination due to incapacity and stated issues would be outlined in letter – Letter provided applicant’s position cannot be left open indefinitely due to nature of role; no gradual return to work or change in work hours could be arranged as no date for return could be set – Letter invited discussions - W sent final letter dismissing applicant after discussions with applicant revealed conditions had not changed – Authority found proper procedure used to investigate whether applicant could return to work within a reasonable time – Authority did not accept submissions applicant’s accident was work related therefore respondent had greater obligation towards applicant – 2003 accident occurred outside of work - Found respondent not obligated to put in place rehabilitation plan when no date for return could be set – Found respondent not under specific obligation to convene formal meeting when adequate investigation into applicant’s condition been made – W discussed condition with applicant several times, advised applicant of dismissal if incapacity resumed, applicant made aware respondent’s discussions with case manager and physiotherapist was to evaluate the extent of applicant’s incapacity – Dismissal justified – PENALTY – Breach of Good Faith – Applicant claimed respondent breached good faith by failing to explore possibility of reduced working hours – Authority found respondent did not act to undermine employment relationship – Found alternatives not discussed due to indefinite incapacity and permanent nature of applicant’s role – Penalty declined |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(A);ERA s4(1)(A)(b);Injury Prevention, Rehabilitation and Compensation Act 2001 s711 |
| Cases Cited | Barry v Wilson Parking New Zealand (1992) [1998] 1 ERNZ 545;Canterbury Clerical Workers IUW v Andrews and Beavan Ltd [1983] ACJ 875;Classique Giftware Ltd v Porter, unreported, Palmer J, 9 May 1995, CEC 20/95;Innes-Smith v Wood [1998] 3 ERNZ 1298;Schenker & Co (NZ) Ltd v Elliot, unreported, Colgan J, 13 July 1999, AC 53/99 |
| Number of Pages | 11 |
| PDF File Link: | ca 19_09.pdf [pdf 38 KB] |