| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 207/09 |
| Hearing date | 29 Jul 2009 |
| Determination date | 02 December 2009 |
| Member | H Doyle |
| Representation | A Sharma ; C Atkins |
| Location | Nelson |
| Parties | Simpson v Tasman Glass Ltd |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – HEALTH AND SAFETY – Applicant argued respondent’s expectation of extended work hours of 70 hours per week unjustified – Applicant argued became exhausted and anxious and employment terminated while on sick leave – Respondent argued did not fail to operate safe system of work or that hours of work unjustified – Respondent claimed dismissed applicant for failure to provide medical prognosis as to fitness for work – Respondent argued no bonus owing because company failed to make profit – Applicant’s hours of work increased and often worked weekends – Respondent claimed bonuses paid during employment – Respondent argued applicant’s inability to cope with long hours supported by fact also drove trucks in evening or on weekends – Authority found applicant ceased to drive trucks – Applicant’s mother fell ill and applicant took sick leave to care for her – Respondent witnesses claimed applicant reduced hours of work – Authority rejected claim – Applicant involved in incident as result of physical exhaustion – Found applicant made reference to hours worked as cause of tiredness in meeting with respondent – Applicant obtained medical certificate stating unfit to work and provided copy to respondent – Medical certificate extended twice – Respondent inquired as to why applicant could not return to work – Respondent claimed very limited information received from applicant – Respondent requested applicant attend meeting to discuss leave – Applicant failed to attend meeting – Respondent sent letter to applicant requiring communication or employment would be terminated – Respondent received no reply and applicant dismissed with four weeks’ notice – Applicant’s employment agreement did not specify hours of work but overtime possibly required – Found hours not reasonable – Found expectation to work hours caused disadvantage in causing health to deteriorate – Found failure to attend meetings or provide further information justified dismissal – Found applicant held key position – Found position able to be covered by other employees – Found fair and reasonable employer would not have dismissed applicant – Found dismissal based on applicant filled key position not justified – REMEDIES – Contribution of 15 percent based on failure to be responsive and communicative about health issues – Applicant mitigated losses by finding alternative work quickly – Respondent claimed paid beyond sick leave entitlement and therefore holiday pay not owed – Found holiday pay due and owing – Found payment advance on future entitlement – Reimbursement for lost wages of $2,353 appropriate – Compensation of $8,000 reduced to $7,550 appropriate – Found no entitlement to bonus payment – Factory/despatch supervisor |
| Result | Application granted ; Reimbursement of lost wages ($2,353.84) ; Compensation for humiliation etc ($8,000 reduced to $7,550) ; Arrears of holiday pay ($2,235.92) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Barry v Wilson Parking New Zealand (1992) Ltd [1998] ERNZ 545;Kirkwood v On Gas Limited unreported, A Dumbleton, 1 Nov 2004, AA 351/04 |
| Number of Pages | 22 |
| PDF File Link: | ca 207_09.pdf [pdf 68 KB] |