| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 201/10 |
| Hearing date | 21 Oct 2010 |
| Determination date | 27 October 2010 |
| Member | H Doyle |
| Representation | J Mirkin ; L Brook |
| Location | Dunedin |
| Parties | Davy v Oceana Gold (New Zealand) Ltd |
| Summary | INJUNCTION - Application for interim reinstatement - Applicant worked for company (“X”) which had contract with respondent for underground mine - Respondent owner in control of site - Respondent decided to end contract with X - X’s employees informed would become employees of respondent if had satisfactory employment record with X - Applicant sought and obtained signed employment agreement from respondent to assist in obtaining mortgage for house - While applicant working in mine used cigarette lighter to cut piece of poly rope - Applicant believed fire properly extinguished - Fire not properly extinguished, rope continued to smoulder, then ignited leading to fire - Fire extinguished by applicant’s shift supervisor (“N”) - X issued applicant with final written warning for failing to use appropriate tool for job when cutting rope - X informed respondent about incident - Respondent withdrew applicant’s site access on basis incident serious breach of safety that put applicant and co-workers at risk - X advised applicant withdrawal of site access meant applicant could no longer work for X - Respondent advised conditional offer of employment withdrawn as applicant did not meet conditions - Respondent accepted was arguable case for unjustified dismissal but claimed no arguable case for permanent reinstatement - Authority found arguable applicant respondent’s employee - Found if was employee, arguable dismissal unjustified - Found could be arguable whether were matters applicant could have advanced in explanation or mitigation before termination that could have gone towards continuing employment - Found was dispute whether applicant had correct tools for job and whether applicant alerted N to fire - Authority found applicant had arguable case for unjustified dismissal and arguable case for permanent reinstatement - Earliest available date for substantive investigation meeting over three months away - Applicant provided evidence of financial hardship suffered as consequence of dismissal - Applicant main earner for family and had three children - Applicant claimed found it hard to obtain alternative employment - Applicant claimed needed work immediately and any future monetary payment would not address needs - Respondent claimed interim reinstatement was risk in terms of respondent’s obligations to provide safe workplace for employees - Claimed if fire not discovered when was could have been catastrophic and smoke produced already toxic - Authority found potential health and safety risk not capable of being compensated for if was another incident and applicant or another worker hurt - Found applicant’s financial hardship capable of being compensated for by damages - Found as position unskilled interim reinstatement not required to maintain applicant’s skill, status or career - Found balance of convenience favoured respondent - Authority satisfied overall justice required application be dismissed - Application for reinstatement declined - Nipper |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Cases Cited | Counties Manukau District Health Board v Trembath [2001] ERNZ 847;Madar v P & O Services (NZ) Ltd [1999] 2 ERNZ 174 |
| Number of Pages | 8 |
| PDF File Link: | ca 201_10.pdf [pdf 26 KB] |