| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 482/10 |
| Hearing date | 26 Apr 2010 |
| Determination date | 16 November 2010 |
| Member | Y S Oldfield |
| Representation | M Whitehead ; M McGowan |
| Location | Auckland |
| Parties | Biggs v Supalite Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – DISCRIMINATION – Respondent required applicant to provide medical clearance following strokes suffered by applicant – Respondent not satisfied with material provided by applicant – Applicant claimed unjustifiably disadvantaged and discriminated against by being prevented from returning to employment – Respondent argued in all circumstances where applicant had suffered serious medical problem was reasonable and responsible to seek medical clearance before putting applicant back on job – Respondent argued entitled to require medical certificate confirming employees fitness for work – Argued as applicant initiated discussions of exit package no inference respondent wanted to get rid of applicant – Authority found reasonable and prudent, given seriousness of applicant’s medical problem, for respondent to seek medical clearance before applicant returned to job – Found respondent acted in good faith in engagement with applicant – Found applicant unable to give satisfactory explanation why had not seen doctor sooner – Found respondent justified in declining to have applicant back at work – No unjustified disadvantage – Applicant argued unjustifiably discriminated against in that subjected to detriment because of disability as stroke victim – Found different treatment of applicant justified – Found had applicant been able to provide medical clearance would have been no difference in treatment – Respondent justified in not returning applicant to normal duties – No unjustified discrimination – UNJUSTIFIED DISMISSAL – Serious misconduct – During month when applicant had no income took up work with another employer (“S”) – Respondent cautioned if found applicant working for competitor would be regarded as serious misconduct – Applicant claimed no breach of restraint provision in employment agreement as did not consider S competitor – Authority found respondent and S operated at different ends of market but had potential to compete – Respondent argued dismissal appropriate in all circumstances including where applicant had not disclosed activities and delayed in obtaining medical clearance – Found respondent behaved as reasonable employer – Found respondent gave applicant five weeks discretionary paid leave and kept job open for period – Found applicant meanwhile had gone to work for competitor – Found respondent justified in dismissing applicant for breaches of duties of fidelity and good faith – Dismissal justified – Sales Executive |
| Result | Applications dismissed (Disadvantage)(Discrimination)(Dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s104(1)(b);ERA s105(1)(h);Health and Safety in Employment Act 1992;Holidays Act 2003 s68(4)(a) |
| Number of Pages | 14 |
| PDF File Link: | aa 482_10.pdf [pdf 38 KB] |