| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 26/10 |
| Hearing date | 20 Nov 2009 |
| Determination date | 25 January 2010 |
| Member | K J Anderson |
| Representation | S Grice ; A Sherriff |
| Location | Tauranga |
| Parties | Tane v Secretary for Justice |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIIFED DISADVANTAGE – Incapacity – Applicant claimed dismissal unjustified – Claimed respondent’s initial acceptance of applicant’s absence due to injury and later intolerance caused disadvantage – Claimed respondent breached s56 State Sector Act 1998 (“SSA”) - Respondent argued dismissal justified for incapacity – Argued no disadvantage as applicant failed to engage with respondent about injury - Argued no breach – Applicant suffered non-work injury and required sick leave – Applicant briefly returned to work – Respondent’s manager (“B”) requested meeting to discuss applicant’s injury – Applicant agitated at meeting and walked out – B subsequently wrote to applicant requesting further meeting – Applicant failed to respond – Applicant subsequently requested periods of leave - Applicant refused to directly communicate with B, however, referred all matters to respondent’s controlling officer (“L”) – Applicant requested leave for further 56 days - B contacted applicant several times and unsuccessfully sought to meet with applicant to discuss prognosis and return to work – Applicant’s ACC case manager failed to provide injury and rehabilitation report to respondent – Following year, applicant provided medical certification indicating return to work on limited basis – B advised applicant return to work plan created “operational problems” for respondent – B unsuccessfully sought meetings with applicant – B wrote to applicant warning possibility of retiring applicant on medical grounds if applicant failed to make meeting – Meeting held – Parties discussed applicant prone to further injury and needed leave for 6 weeks for operation and 6 months for rehabilitation – B confirmed applicant’s restricted mobility created operational problems due to physical layout of workplace – Respondent’s regional manager (“X”) unsuccessfully sought meetings with applicant before making final decision – X notified applicant preliminary decision to dismiss however gave applicant time to make submissions – Applicant failed to respond – Applicant dismissed – Applicant claimed respondent incorrectly dismissed applicant under collective employment agreement (“CEA”) when applicant employed under individual employment agreement (“EA”) - Authority found respondent referred to wrong provision in dismissal letter – Found despite mistake, applicant would have known what the correct contractual provision was and why it relied on – Found respondent entitled to assess whether applicant’s restricted return to work possible given respondent’s operational needs – Found respondent reasonably concluded applicant’s return to work unsuitable due to layout of workplace and high risk applicant may suffer injury – Found applicant could have been more cooperative by attending meetings – Found, however, respondent had sufficient information regarding applicant’s condition – Found overall, given applicant’s prolonged period of absence, dismissal justified – Found no breach of s56 SSA - COUNTERCLAIM – Recovery of monies – Respondent sought recovery of $978 for overpayment of wages – Authority ordered applicant to pay respondent $978 – Court Support Officer |
| Result | Applications dismissed ; Counterclaim granted ; Recovery of monies ($978.42)(Counterclaim in favour of respondent) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s157;State Sector Act 1998 s56 |
| Cases Cited | Hosking v Coastal Fish Supplies Ltd [1985] ACJ 124;Motor Machinists Ltd v Craig [1996] 2 ERNZ 585 |
| Number of Pages | 15 |
| PDF File Link: | aa 26_10.pdf [pdf 52 KB] |