| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 210/10 |
| Hearing date | 10 Aug 2010 |
| Determination date | 17 November 2010 |
| Member | M B Loftus |
| Representation | K Graham ; no appearance |
| Location | Christchurch |
| Parties | Douglas v B A Logging Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – No appearance for respondent – No written employment agreement - Applicant employed as digger operator – Applicant occasionally operated chainsaw – Applicant had confirmed with respondent’s director (“A”) that size 46 chainsaw adequate – Applicant in ute with two co-workers (“R” and “S”) – Applicant claimed reached for lighter and found both it and door handle covered in grease – Applicant reached behind him for rag, felt some fabric and wiped hands – Applicant then heard expletive and was hit on side of head with safety helmet – Fabric applicant felt was S’s jersey and S had taken offence at applicant using it to wipe hands – Applicant sent text message to A advising of assault – A dismissive of applicant’s concerns – Next day applicant came to worksite and spoke to S – Applicant claimed A and S laughed about incident – Applicant blacked out while operating chainsaw and had trouble driving home – Applicant saw doctor following day and diagnosed with concussion and told to remain off work until specified date – Parties had protracted discussion about applicant’s return to work – A informed applicant would be performing chainsaw work and applicant’s chainsaw inadequate and would need to purchase size 66 chainsaw – Applicant stated had been told chainsaw was adequate size, could not afford to purchase new chainsaw, asked to use respondent’s spare chainsaw and that employed to primarily be digger operator – Respondent told respondent could work if purchased chainsaw - Parties unable to reach agreement - Applicant resigned - Authority found employer under duty to provide safe workplace – Found fulfilling that duty must surely include addressing alleged assault by one employee on another in meaningful way – Found no evidence A treated matter with anything other than disdain – Found was comment that suggested A placed potential damage to helmet above harm caused to employee – Found no evidence A meaningfully discussed matter with applicant or S or that any meaningful action taken against S – Found A’s response fell well short of that required - Found A changed applicant’s duties and required him to work in yard with chainsaw while not allowing him to perform duties engaged for – Found then made arbitrary changes to agreed practices and conditions that precluded applicant from performing ‘new’ duties – Found changes breached duty to adhere to employment agreement - Found substantial risk of resignation was foreseeable – Found applicant gave A plenty of notice about concerns, that considered A’s responses made it difficult to feel safe at work, and that wanted matter resolved – Found applicant entitled to resign in face of A’s multiple breaches of employment agreement – Found resignation was constructive dismissal – Dismissal unjustified - Remedies – No contributory conduct - Applicant sought reimbursement of lost wages from date found unable to return to work when issue of unsuitable chainsaw arose until date of investigation meeting - Authority satisfied applicant attempted to mitigate loss – However, applicant suffered reoccurrence of previous injury – Found meant type of work applicant could perform limited and injury could have precluded him remaining in respondent’s employ – Found that precluded award for lost wages beyond time suffered reoccurrence of injury – Also found as constructive dismissal claim date loss should be calculated from was resignation date not earlier date applicant specified – Respondent to pay applicant 45 weeks reimbursement of lost wages – Applicant sought $10,000 compensation – Found applicant’s evidence of hurt and humiliation caused compelling and justified amount applicant sought - $10,000 compensation appropriate – Digger Operator |
| Result | Application granted ; Reimbursement of lost wages ($24,750) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland & Gisborne Amalgamated Society of Shop Employees and Related Trades etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 ; [1985] 2 NZLR 372 ; (1985) ERNZ Sel Cas 136;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415 |
| Number of Pages | 13 |
| PDF File Link: | ca 210_10.pdf [pdf 43 KB] |