| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 377/10 |
| Hearing date | 5 May 2010 |
| Determination date | 23 August 2010 |
| Member | V Campbell |
| Representation | C Eggleston ; S Davies |
| Location | Auckland |
| Parties | Singh v Gilbarco (NZ) |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed serious misconduct allegation false therefore dismissal unjustified – Respondent argued applicant provided misleading medical information and acted uncooperatively justifying dismissal – Applicant suffered non-work related injury and could not use hand for 28 days – Applicant provided respondent with medical certificate requesting sick leave – Respondent took applicant, without obtaining prior consent, to medical appointment with respondent’s chosen doctor (“A”) – Applicant and A discussed return to work plan and provision of light duties – A did not make enquiries into applicant’s diagnosis - Applicant advised to only undertake light duties but second certificate omitted putting advice in writing - Applicant returned to work providing discharge certificate to respondent – Respondent assigned applicant new duty however declined duty as required heavy lifting – Respondent advised second certificate did not state could only undertake light duties – Applicant subsequently provided amended certificate to state light duties only – Disciplinary meeting held – Applicant dismissed for alleged serious misconduct by misleading respondent on nature of injury causing loss of trust and confidence – Authority found applicant had no obligation under employment agreement to attend appointment with A – Found respondent incorrectly read into A’s letter applicant uncooperative during appointment when in fact applicant was cooperative – Found respondent failed, without explanation, to comply with own procedures to clarify diagnosis – Found while amended certificate seemed “dubious” in circumstances failure to omit detail lay with doctor who issued certificate – Found had respondent conducted fair disciplinary investigation, would not have concluded misleading conduct by applicant – Found no reasonable basis for respondent to conclude loss of trust and confidence to justify dismissal – Dismissal unjustified – REMEDIES – Applicant sought reinstatement to former position – Authority found on basis respondent failed to establish proper reason for loss of trust and confidence, reinstatement appropriate – No contributory conduct - Reimbursement of $1,080 lost wages - Directed parties to agreed on final calculation - $4,000 compensation appropriate – Service Technician |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($1,080.50 per week)(Parties directed to determine final calculation) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s128 |
| Cases Cited | Air New Zealand Limited v Hudson [2006] 1 ERNZ 415;Baumgardner v National Institute of Water & Atmospheric Research Ltd [1992] 3 ERNZ 800;Lewis v Howick College Board of Trustees [2010] NZCA 320;New Zealand Educational Institute v The Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414;Orme v Eagle Technology Group Ltd unreported, Goddard CJ, 15 June 1995, WEC 40/95;Toll New Zealand Consolidated Ltd v Rowe unreported, 19 December 2007, Shaw J, AC 39A/07;X v Auckland District Health Board [2007] 1 ERNZ 66 |
| Number of Pages | 12 |
| PDF File Link: | aa 377_10.pdf [pdf 40 KB] |