| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 440/09 |
| Hearing date | 1 Jul 2009 |
| Determination date | 09 December 2009 |
| Member | M Urlich |
| Representation | M Bradley ; N Dowling |
| Location | Auckland |
| Parties | Scragg v McAlpine Hussman Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Applicant claimed unjustifiably dismissed - Respondent claimed employment ended due to frustration of contract - Alternatively claimed if dismissal then justified - Respondent terminated employment for frustration due to applicant’s inability to fulfil obligations because applicant needed continual sleep due to sleep apnoea - Authority found applicant fell asleep at work because of medical condition - Found no supervening event, without default of parties, which significantly changed nature of agreed outstanding contractual rights or obligations - Found no frustration of contract - Applicant called to meeting about two month’s after applicant’s manager found applicant asleep at desk - Respondent told applicant sleeping at work unacceptable and had provided applicant with support but situation needed to be resolved - Applicant dismissed with one months notice - Found allegation not clearly put to applicant - Found applicant not told dismissal possible outcome - Found delay in holding meeting undermined respondent’s claim situation had reached point could not continue - Found respondent could have waited for consultant physician’s report - Found no detailed assessment of how sleeping on job impacted on applicant’s discharge of duties and rest of factory - Found fair and reasonable employer would have made proper assessment and sought applicant’s comment before making decision to dismiss - Dismissal unjustified - Remedies - Found applicant did not actively draw respondent’s attention to sleep apnoea - Found applicant did not take recommended power naps - Found 20 percent contributory conduct - Applicant received earnings-related compensation from end of paid notice period - Applicant’s claim for reimbursement of lost wages offset by compensatory payments rejected - Found applicant received earnings-related compensation as assessed unable to work - Found causal link between employment ending and lost wages severed - Applicant provided detailed evidence of negative impact and distress dismissal caused - $5,000 compensation reduced to $4,000 appropriate - Design Team member |
| Result | Application granted ; Compensation for humiliation etc ($5,000 reduced to $4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Taylor v Air New Zealand Ltd unreported, Colgan J, 28 Oct 2004, AC 61/04 |
| Number of Pages | 8 |
| PDF File Link: | aa 440_09.pdf [pdf 39 KB] |