| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 51/10 |
| Hearing date | 8 Dec 2009 |
| Determination date | 08 March 2010 |
| Member | P Cheyne |
| Representation | A Shakespeare ; P Churchman |
| Location | Christchurch |
| Parties | Lidiard v New Zealand Fire Service Commission |
| Summary | UNJUSTIFIED DISMISSAL - Applicant resigned - Event occurred leading to respondent offering applicant 12 months leave without pay as alternative to resignation - Applicant dismissed following investigation concluding gained employment through misrepresentation of medical history in pre-employment health questionnaire (“questionnaire”) - Applicant had not disclosed previous treatment for post traumatic stress disorder and depression - Applicant claimed questions about health status breached s23 Human Rights Act 1993 (“HRA”) so false answers could not justify dismissal - Authority found form could not be reasonably taken as indicating intention to unlawfully discriminate - Found no breach of HRA - Applicant claimed questionnaire breached Privacy Act 1993 (“PA”) - Found application form included explanation of reasons for collection of information - Found as application form and questionnaire filled out together applicant would have understood privacy statement applied to all information provided - Found no breach of PA - Found applicant obliged to answer questionnaire truthfully - Applicant claimed respondent could not rely on Contractual Remedies Act 1979 (“CRA”) to cancel employment agreement (“EA”) - Applicant claimed s7(4)(a) CRA could not apply as no express or implied agreement between parties that truth of representations about health essential - Found implied agreement truth of representation essential - Applicant claimed respondent reemployed him in full knowledge of earlier misrepresentation so as to affirm EA - Claimed s7(5) CRA prevented respondent form cancelling EA in those circumstances - Found at time applicant reemployed respondent did not know about misrepresentation - Found respondent did not affirm EA in full knowledge of earlier misrepresentation - Found respondent entitled to cancel EA pursuant to s7(4)(a) CRA - Found respondent considered applicant’s explanation provided false answers because miscalculated time since previous manifestations of illness - Found respondent entitled to reject explanation - Found respondent’s actions those of fair and reasonable employer - Dismissal justified - Firefighter |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Contractual Remedies Act 1979 s7(4)(a);Contractual Remedies Act 1979 s7(4)(b);Contractual Remedies Act 1979 s7(4)(c);Contractual Remedies Act 1979 s7(5);ERA s103A;Human Rights Act s23;Human rights Act 1993 s29;Human Rights Act 1993 s29(1) |
| Cases Cited | Fuiava v Air New Zealand [2006] 1 ERNZ 806;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union [1990] 3 NZILR 23 ; [1991] 1 NZLR 392 ; (1990) 3 NZELC 98,130 ; (1990) ERNZ Sel Cas 855;Imperial Enterprises v Attwood [2002] 2 ERNZ 740 |
| Number of Pages | 12 |
| PDF File Link: | ca 51_10.pdf [pdf 43 KB] |