| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 492/10 |
| Hearing date | 20 May 2010 - 21 May 2010 (2 days) |
| Determination date | 23 November 2010 |
| Member | Y S Oldfield |
| Representation | D Hayes ; S Beard |
| Location | Auckland |
| Parties | Milner v Fonterra Cooperative Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Incapacity – Applicant dismissed following absence from work due to repeated collapsing of lung – Applicant claimed suffered from effects of work related accident – Respondent claimed whether health condition caused by work accident irrelevant – Respondent claimed entitled to end employment according to Collective Employment Agreement (“CEA”) – Respondent claimed made decision to dismiss on information at hand including condition not caused by workplace accident – Applicant on paid leave following complaint breached safety protocols – Applicant required to contact respondent each week – Respondent claimed applicant failed to comply with directive – Respondent claimed could not keep applicant’s job open – Respondent claimed received medical certificate for 60 days leave and no certainty of return – Respondent claimed dismissed applicant because applicant did not provide information needed about prognosis and likely return date – Authority found applicant supplied respondent with all relevant medical information – Found no blame to be attached for missing weekly calls given poor state of health – Found no evidence of failure to cooperate with assessments – Found failure to supply information about prognosis not enough to justify dismissal – Applicant claimed respondent obliged to keep job open following work related accident according to CEA – Respondent claimed CEA did not apply because at time of dismissal did not know whether applicant suffering from work accident – Found unreasonable and premature for respondent to dismiss applicant – Dismissal unjustified – REMEDIES – No contributory conduct – Reinstatement declined due to continuing bad health – Found respondent required to pay earnings related compensation according to CEA – $2,685 reimbursement of lost wages appropriate – $5,000 compensation appropriate – $17,500 compensation for loss of benefit clause in CEA – Forklift Driver |
| Result | Application granted ; Reimbursement of lost wages ($2,685.80) ; Compensation for humiliation etc ($5,000) ; Compensation for loss of benefit clause in CEA ($17,560) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s114 |
| Cases Cited | Auckland & Tomoana Freezing Works etc IUOW v Wilson Foods Ltd [1990] 3 NZILR 939;Canterbury Clerical Workers IUOW v Printing & Packaging Corp Ltd [1988] NZILR 1213;Lang v Eagle Airways Ltd [1996] ERNZ 574;Marshall v Harland & Wolff Ltd [1972] 1 WLR 899 |
| Number of Pages | 15 |
| PDF File Link: | aa 492_10.pdf [pdf 63 KB] |