| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 411/09 |
| Hearing date | 28 May 2009 |
| Determination date | 18 November 2009 |
| Member | R Arthur |
| Representation | R Fletcher ; K Thompson |
| Location | Auckland |
| Parties | Luutomes v Air New Zealand Ltd |
| Summary | DISPUTE – Applicant claimed suffered two injuries while working on board aircraft – Cover for treatment of injuries provided under Injury Prevention Rehabilitation and Compensation Act 2001 (“IPRCA”) – Cover managed by respondent as accredited employer in partnership with ACC – Respondent’s consultant gave opinion applicant’s pain result of disease and not workplace strains – Applicant’s ACC entitlements cancelled – Applicant’s subsequent leave from work because of back pain treated as either annual leave or sick leave – Respondent concluded applicant not fit to fly, not expected back to work in next 6 months, and timeframe could not be determined for return – Applicant dismissed – At time of dismissal applicant on period of leave for 7 months – Respondent refused applicant’s request to keep position open for indefinite period – Applicant claimed respondent not entitled to dismiss for medical incapacity given collective employment agreement’s (“CEA”) unlimited sick leave policy – Respondent argued if applicant’s argument accepted would mean employee permanently disabled through sickness or injury would be entitled to remain on full pay for rest of otherwise working life – Authority found CEA did not restrict respondent investigating situation where suspicion of fault in length of absence – Found CEA not complete code – Found CEA did not expressly state requirements in case of extended periods of medical incapacity – Found case law established employer not bound to hold job open indefinitely for incapacitated worker – Found applicant could not use personal grievance procedures to further continued belief had workplace injuries for which cover wrongly declined – However, found decisions of respondent’s managers in capacity as representatives of respondent subject to review by Authority – Authority accepted respondent’s submission distinction artificial where employer operated as accredited employer as ACC’s agent – Found decisions made by applicant’s managers made for respondent as ACC’s agent and beyond review by Authority – However, some actions in capacity as employer not agent – Found applicant’s manager not required to give evidence about respondent’s decisions in declining applicant’s claims for cover and entitlements under IPRCA – Authority asked counsel to make arrangements for further investigation |
| Result | Orders made ; Costs reserved |
| Main Category | Dispute |
| Statutes | Injury Prevention Rehabilitation and Compensation Act 2001;ERA s103A;ERA s174;ERA s133(5);Privacy Act 1993 |
| Cases Cited | Innes-Smith v Wood [1998] 3 ERNZ 1298;Wilson v Johnathons Catering Co Ltd [2000] 1 ERNZ 660;Creedy v Commissioner of Police [2008] NZSC 31 |
| Number of Pages | 11 |
| PDF File Link: | aa 411_09.pdf [pdf 38 KB] |