| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 398/10 |
| Hearing date | 12 Jul 2010 |
| Determination date | 06 September 2010 |
| Member | K J Anderson |
| Representation | J Peebles ; S Beard |
| Location | Hamilton |
| Parties | Hunter v Canpac International Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably constructively dismissed by respondent - Respondent claimed no constructive dismissal arguing circumstances arose where applicant advised failure to wear hearing protection would place employment in jeopardy – Applicant advised respondent not prepared to wear hearing protection as required and subsequently resigned – Applicant had severe hearing loss and wore hearing aid without which could not hear – Previously respondent accepted applicant not required to wear hearing protection – However, fact applicant not wearing hearing protection came under scrutiny after health and safety policy update – Following receipt of audiologist report applicant asked to wear hearing protection – Authority found audiologist’s report not entirely conclusive – Respondent sent applicant letter outlining process followed to date and recommending applicant be fitted with one of two particular earmuffs – Respondent asked applicant to trial new earmuffs – Respondent argued applicant put them on and quickly removed them – Subsequently applicant suspended – Applicant claimed knew instantly earmuffs not right as getting feedback from hearing aid – Subsequently applicant called to meeting to discuss refusal to wear hearing protection – Respondent argued applicant invited to provide evidence that failure to wear hearing protection would not harm hearing – Subsequently applicant went on annual leave – Applicant provided assessment from GP – Authority accepted respondent’s argument GP not qualified to make type of assessment required in circumstances – Respondent provided applicant ultimatum that if had not confirmed within 7 days was returning to work and would comply with safety requirements then employment terminated without notice – Subsequently applicant provided letter from specialist with options – Respondent rejected specialist’s suggestion arguing any option involving “non-approved” hearing protection not acceptable – Applicant resigned – Applicant claimed left with option of wearing hearing protection or resigning – Claimed chose to resign because hearing protection would have prevented hearing in workplace making it unsafe – Authority found applicant’s belief genuinely and realistically held – Found respondent too hasty in rejecting outright suggestions made by applicant’s specialist – Found motivation for resignation that neither of alternatives presented by respondent reasonable given hearing disability – Found applicant constructively dismissed – Found adoption of non-negotiable position before outcome of consultation with specialist known unreasonable – Found unfair and unreasonable of respondent to reject specialist’s suggestions – Found at very least applicant entitled to have specialist’s suggestions considered, discussed, and possibly trialled – Authority noted respondent not unreasonable in regard to general responsibility to uphold appropriate health and safety measures – However, fair and reasonable employer would have given consideration to other options and their feasibility before rejecting them – Dismissal unjustified – Remedies – Found applicant particularly reluctant to trial any alternatives offered by respondent to overcome problem – Remedies to be reduced by 20 percent – Found $8,087 reimbursement of lost wages after contribution – Found $4,000 compensation after contribution appropriate – Setter |
| Result | Application granted ; Reimbursement of lost wages ($10,109.52 reduced to $8,087.62) ; Compensation for humiliation etc ($5,000 reduced to $4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Commissioner of Police v Hawkins [2009] 3 NZLR 381 |
| Number of Pages | 13 |
| PDF File Link: | aa 398_10.pdf [pdf 47 KB] |