| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 157/09 |
| Hearing date | 14 May 2009 |
| Determination date | 18 May 2009 |
| Member | Y S Oldfield |
| Representation | E Hartdegen ; P Kiely, G Maynes |
| Location | Auckland |
| Parties | Khan v Air New Zealand Ltd |
| Summary | INTERIM INJUNCTION – Application for interim reinstatement – Applicant claimed failure to assist applicant into alternative work following incapacity breached duty of good faith – Applicant suffered work-related injury and commenced period of sick leave – Vocational Independence Report confirmed applicant unable to return to former position but identified alternative types of work – Applicant subsequently advised vocationally independent – Applicant returned to workplace beginning with light duties and gradually increased work hours – Respondent held meetings with applicant to review status and explored alternative permanent positions – No alternative position found – Applicant dismissed for incapacity – Applicant claimed arguable whether position that fitted into applicant’s vocational assessment would amount to permanent reinstatement to position no less advantageous to former position – Respondent claimed all obligations met and no prospect of obtaining permanent reinstatement – Authority found incapacity could impede permanent reinstatement however arguable applicant entitled to reinstatement to position no less advantageous than former position – Applicant claimed balance of convenience in their favour – Damages inadequate to compensate for emotional and psychological need to get back into workforce – Delay in proceedings not attributable to applicant – Financial ability to meet damages undertaking – Respondent claimed balance in their favour – Delay in proceedings – Status quo not employment with respondent – Interim reinstatement would burden respondent to find “make work” solution that would require applicant to be under significant supervision - Garden leave not applicant’s preference – Insufficient evidence applicant able to meet undertaking – Found balance and overall justice in respondent’s favour – Respondent’s burden of finding alternative position outweighed benefits of immediate reinstatement – Questioned applicant’s ability to meet undertaking – Long lapse of time since dismissal – Interim reinstatement declined – Loading Foreman |
| Result | Application dismissed; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s127 |
| Cases Cited | Cliff and Anor v Air New Zealand [2005] ERNZ 1;Counties Manukau District Health Board v Trembath [2001] ERNZ 847;Mitchell v Te Reo Irirangi o Ngati Raukawa Trust, unreported, Colgan J, 4 Nov 1996, AEC 73/96;NZ Stevedoring Co Ltd & Ors v NZ Waterfront Workers Union [1990] 3 NZILR 308 |
| Number of Pages | 8 |
| PDF File Link: | aa 157_09.pdf [pdf 31 KB] |