| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 46/10 |
| Hearing date | 4 Nov 2009 |
| Determination date | 03 March 2010 |
| Member | P Montgomery |
| Representation | P O'Sullivan ; D Pine |
| Location | Christchurch |
| Parties | Pivott v Ross Milking Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor performance – UNJUSTIFIED DISDVANTAGE – No appearance by applicant – Applicant experienced pain in hands and informed respondent – Condition deteriorated and applicant took pain medication – Applicant late for work – Respondent claimed verbal warning issued – Applicant denied verbal warning and given no written record of verbal warning – Respondent claimed final warning given for lateness – Applicant not given copy of warning – Applicant diagnosed with carpal tunnel and claimed medication caused sleepiness – Applicant suffered accident at work – Applicant failed to immediately report accident – Applicant prescribed medication for back pain – Respondent denied on notice of medication that could affect employment – Applicant arrived late for work and subsequently dismissed – Respondent kept diary of occasions on which applicant spoken to or warned – Authority found diary never shown to applicant – Found warnings not given to applicant – Found applicant did not have copy of agreement containing accident reporting procedures – Found respondent failed to take into account effects of applicant’s medication – Found applicant offered respondent information about carpal tunnel and offer declined – Found respondent inexperienced and unfamiliar with managing staff – Found fair and reasonable employer would have provided original employment agreement to applicant, would have provided copies of warnings, and would have discussed effects of medication prior to making decision to dismiss – Dismissal unjustified – Found applicant disadvantaged by respondent failing to provide copy of employment agreement – REMEDIES – Sums to be reduced by 25 percent for contributory conduct except compensation for unjustified disadvantage – $4,616 reimbursement of lost remuneration appropriate – $4,000 compensation appropriate – $500 compensation payable for failing to provide applicant with copy of employment agreement – No award for loss of benefit of accommodation – PENALTY – Applicant sought penalty for respondent failing to supply copy of employment agreement and for breaching Health and Safety in Employment Act 1992 – Authority unable to consider matter because not open for employee to bring proceedings seeking damages or penalties on the ground of physical injury – Penalty declined – Milker |
| Result | Applications granted (unjustified dismissal) (unjustified disadvantage) ; Reimbursement of lost wages ($4,616 reduced to $3,462) ; Compensation for humiliation etc ($4,000 reduced to $3,000)(unjustified dismissal) ($500)(Unjustified disadvantage) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;Health and Safety in Employment Act 1992 s49 |
| Cases Cited | Brittain v Telecom Corporation of NZ Ltd [2001] ERNZ 647 |
| Number of Pages | 11 |
| PDF File Link: | ca 46_10.pdf [pdf 46 KB] |