| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 106/10 |
| Hearing date | 15 Jun 2009 - 17 Jun 2009 (3 days) |
| Determination date | 08 March 2010 |
| Member | D King |
| Representation | S Tee ; R Schmidt |
| Location | Auckland |
| Parties | Hilditch v Ministry of Fisheries |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed constructively dismissed as result of respondent’s breach of duty to provide safe workplace, which caused injury, making it impossible for applicant to return to work - Respondent claimed applicant chose medical retirement - Applicant’s unit restructured - Applicant unhappy with changes - Applicant suffered bronchial problems while on period of leave - Applicant informed manager (“N”) experiencing serious, ongoing nasal and sinus congestion problems - Applicant returned to work but several months later required five month period of sick leave - On applicant’s return applicant and N discussed applicant’s workload - Applicant’s workload monitored - Applicant claimed had regular discussions with N about health problems - Applicant’s leave without pay request declined - Applicant believed refusal was due to personal grudge against him and was being treated in arrogant, unfair and dictatorial manner - Parties had discussion about applicant leading an operation - Applicant decided role would not adversely affect health but requested higher duties allowance, car and greater autonomy - Respondent concluded higher duties allowance and car not required - Respondent decided to appoint someone else to role - Applicant continued to experience ill health and took a further period of leave - Applicant sought to retire on medical grounds - Applicant claimed informed respondent illness stress related and caused by work - Found applicant’s medical certificates non specific so could not have altered respondent applicant suffering from work related stress - N claimed believed applicant’s illness due to ongoing sinus problems which stress could aggravate - Found as applicant did not tell respondent why seeing clinical psychologist respondent had no way of knowing whether was for personal or work related reasons - Found applicant’s resignation letter would not have altered respondent to applicant’s concerns about work related stress - Found what respondent did know was applicant had been ill over prolonged period and illness could be exacerbated by stress - Found respondent did put in place mechanisms to reduce stress - Found no question applicant’s work inherently stressful - Found applicant had pattern of returning to work contrary to medical advice - Found showed applicant not prepared to take all practicable steps to ensure own safety at work - Found as applicant able to control workload and time in lieu available applicant’s workload not excessive - Found factors causing applicant’s ill health were combination of frustration caused by feeling had been unjustly criticised, dissatisfaction with restructuring, offer and later withdrawal of position, and fact that leave without pay not granted, which applicant saw as personal attack coupled with chronic sinus problems - Found applicant not told to work excessive hours - Found no evidence respondent placed undue work pressure on applicant - Found respondent took reasonable care to avoid unnecessary risk - Found applicant offered assistance and when refused it told if needed other assistance to ask - Found applicant’s dislike of restructure did not constitute breach of duty by respondent as respondent entitled to restructure - Found applicant not told leave without pay would be granted and the declined - Found applicant did not tell respondent felt granting leave without pay necessary for well being - Found operational reasons for declining to grant leave - Found withdrawal of position could have been handled better but inconsiderate conduct causing resentment did not per se constitute dismissive or repudiatory conduct - Found no breach of duty by respondent - No constructive dismissal - Senior Investigator |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | HSE s2(1);HSE s6 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Buis v Silverdene Farms (2001) Ltd unreported, PR Stapp, 2 Sep 2004, WA 118/04;Nelson v Air New Zealand International Ltd unreported, M Urlich, 22 Mar 2006, AA 81/06;Nilson-Reid v Attorney-General in respect of the Director-General of the Department of Conservation [2005] ERNZ 951;Wellington, Taranaki & Marlborough Clerical etc IUOW v Greenwich V.V. & C.F. (t/a Greenwich & Associates Employment Agency & Complete Fitness Centre) [1983] ACJ 965 ; (1983) ERNZ Sel Cas 95;Whitehead v Metallic Sweeping (1998) Ltd unreported, Y S Oldfield, 9 Jan 2009, AA 6/09 |
| Number of Pages | 20 |
| PDF File Link: | aa 106_10.pdf [pdf 54 KB] |