| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 180/09 |
| Hearing date | 23 Jul 2009 - 24 Jul 2009 (2 days) |
| Determination date | 13 November 2009 |
| Member | D Asher |
| Representation | D Oliver ; T Cleary |
| Location | Wellington |
| Parties | Ousley v Silver Ferns Ltd |
| Summary | HEALTH AND SAFETY - BREACH OF CONTRACT - Applicant claimed respondent failed to provide safe workplace - Claimed beef offal room frequently under staffed because of serious absenteeism - Claimed absentee and injured co-workers not replaced as agreed to in collective agreement employment agreement (“CEA”) - Claimed because of increased workloads suffered workplace musculoskeletal and nerve disorders to right shoulder and suffered anxiety and stress - Authority found implied term in parties’ employment agreement regarding duty to maintain health and safety standards - Found under s6 Health and Safety in Employment Act 1992 employer must take all reasonably practicable steps to avoid harm to employees - Found no evidence manning levels below those agreed in CEA - Found no evidence agreed process in CEA not reasonable - Found no evidence wrongful actions by respondent led to harm applicant suffered - Authority found as soon as respondent became aware of applicant’s health and safety concerns conducted immediate review - Found respondent implemented suggested improvements - Found review did not reveal any health and safety concerns - Found two Department of Labour investigations found no health and safety breaches - Found despite that respondent planned and implemented improvements - Found respondent consistently acted fairly and reasonably and in accordance with obligations under employment agreements and Injury Prevention, Rehabilitation and Compensation Act 2001 - UNJUSTIFIED DISADVANTAGE - Applicant claimed received unjustified written warning - Authority found received written warning for leaving premises without permission in breach of CEA - Found applicant provided no explanation for actions at time received warning - At investigation meeting applicant claimed told to go home by leading hand - Authority found even if true applicant would have known leading hand had no authority to tell employees to leave - Warning justified - No unjustified disadvantage - Applicant claimed respondent unjustifiably interfered in rehabilitation plan - Authority found respondent did not ask applicant to complete tasks specified in rehabilitation programme as tasks applicant unfit for - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed resignation was constructive dismissal as respondent breached individual employment agreement (“IEA”) applicant on at time resigned - Authority found no credible evidence respondent breached IEA - Found resignation not prompted by any other circumstances amounting to constructive dismissal - No dismissal - COSTS - Applicant legally aided - Respondent indicated would not seek costs if applicant legally aided - Costs to lie where they fall - Beef offal room worker |
| Result | Applications dismissed ; Costs to lie where they fall |
| Main Category | Health & Safety |
| Statutes | ERA s103A;HSE s6;Injury Prevention, Rehabilitation and Compensation Act 2001 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136;Attorney-General v Gilbert [2002] 1 ERNZ 31;Brickell v Attorney-General [2000] 2 ERNZ 529;Mitchell v Blue Star Print Group (NZ) Ltd [2008] ERNZ 594 |
| Number of Pages | 10 |
| PDF File Link: | wa 180_09.pdf [pdf 31 KB] |