| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 145/10 |
| Hearing date | 2 Feb 2010 |
| Determination date | 14 July 2010 |
| Member | P Cheyne |
| Representation | N McFall ; T McKenzie |
| Location | Christchurch |
| Parties | McFall v Lyttelton Port Company Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Incapacity - Applicant suffered head injury when punched in head while playing rugby - Applicant unfit for work for number of months - Applicant placed on graduated return to work programme (“GRTWP”) - Applicant broke finger in non-work accident - Applicant took some time off work and then continued with amended GRTWP - Applicant claimed during GRTWP was put in positions where no assistance provided, found it difficult to take necessary breaks, and found work environment to be very negative towards him - Authority found respondent took appropriate steps to assist with applicant’s participation in GRTWP - Applicant continued to have periods of sick leave and head injury not improving as expected - Respondent began to have concerns about applicant’s ability to return to full duties - Respondent sought meeting with applicant to discuss impact of injury on applicant’s ability to continue employment - Respondent made clear did not wish to continue with GRTWP and was considering terminating applicant’s employment - Applicant did not want to attend meeting and believed would adversely affect health - Meeting finally held more than month after first requested - Applicant dismissed for incapacity - Authority found no material breach by respondent of own policies - Found respondent waited reasonable time to give applicant opportunity to recover from two accidents - Found applicant unable to perform normal duties for nearly 10 months before respondent sought to meet applicant to discuss possibility of dismissal - Found applicant made aware of increasing concerns over absences and given opportunity to respond - Applicant’s claims getting better and would have progressed to working full hours and duties if been allowed to continue GRTWP rejected - Found evidence showed applicant not getting better and no substantial reason for respondent to think would progress smoothly to full hours and duties on return to work - Found respondent faced with employee whose absence significantly exceeded duration of active service; for whom was no confidence would resume full duties shortly; and whose absence was causing some cost and disruption to respondent - Found decision to dismiss applicant for incapacity open to fair and reasonable employer in circumstances - Dismissal justified - Maritime Security Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Barry v Wilson Parking New Zealand (1992) Ltd [1998] 1 ERNZ 545 |
| Number of Pages | 14 |
| PDF File Link: | ca 145_10.pdf [pdf 50 KB] |