| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 95/09 |
| Hearing date | 6 May 2009 - 20 May 2009 (3 days) |
| Determination date | 03 July 2009 |
| Member | J Crichton |
| Representation | R McCabe ; S Dalzell |
| Location | Nelson |
| Parties | John v Airways Corporation of New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Incapacity - Applicant transferred from largely non operational position at Wellington Tower to operational role at Nelson Tower - Applicant had to undergo training to become rated for Nelson Tower - Applicant claimed training stressful and was fatigued and concerns about training not adequately dealt with - Applicant’s health deteriorated and diagnosed with Anxiety Stress Disorder - Applicant suffered family bereavement - Applicant disqualified from holding medical certificate which meant could not work as air traffic controller - Applicant made complaint to Department of Labour - Department of Labour’s report concluded applicant suffering workplace stress and was bullied - Report subsequently withdrawn when found to be flawed - Respondent’s own investigation found applicant’s claims not substantiated - Applicant dismissed on notice for incapacity pursuant to employment agreement - Applicant claimed effectively forced to transfer at time and date suitable to respondent and his concerns were ignored - Authority found no evidence to support claim - Found evidence showed measured and collaborative approach by parties - Found parties worked to find mutually agreed solution - No unjustified disadvantage - Found applicant not treated differently to other employees - Found applicant’s concerns about training properly dealt with - Found respondent’s system of work not flawed in balancing safety conscious environment with needs of staff - Found respondent not made aware of hazards applicant claimed affected by - Found applicant did not suffer any unjustified disadvantage - Found applicant never adequately communicated to respondent that suffered workplace stress and bullying that led to anxiety disorder that meant could not continue employment - Found respondent knew applicant unwell but not that respondent’s alleged failures the cause - Employment agreement contained clause providing for dismissal for incapacity - Found applicant met requirements for dismissal - Found employment agreement entitled respondent to dismiss applicant - Found as applicant suffered no unjustified disadvantage respondent could properly rely on clause - Dismissal justified - Air Traffic Controller |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | HSE s2A(2);HSE s6;HSE s7 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342 |
| Number of Pages | 23 |
| PDF File Link: | ca 95_09.pdf [pdf 72 KB] |