| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 218/10 |
| Hearing date | 24 Nov 2010 |
| Determination date | 30 November 2010 |
| Member | P Cheyne |
| Representation | P Nelson ; D Rhodes |
| Location | Alexandra |
| Parties | Nelson v Dion Morrell Shearing Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Authority found informally accepted by respondent that circumstances of applicant’s dismissal gave rise to unjustified constructive dismissal – Found therefore, principally dispute about remedies – Assessing applicant’s contribution to situation important – Respondent concerned about applicant’s “theft of time” – Subsequently incident where respondent’s wife (“A”) alleged applicant used abusive language towards A – Respondent’s witnesses’ evidence preferred – Found applicant clearly motivated by desire for retribution, which influenced evidence – Found respondent did not hold off dealing with issues with applicant - Incident where respondent punched applicant in eye – Applicant did not return to work – Found applicant unjustifiably constructively dismissed – REMEDIES – Found applicant’s abusive comment what propelled respondent into action – Found applicant made comment expecting other workers to hear but not A – Found applicant also contributed to escalation of incident into assault – Found respondent’s evidence preferred that applicant’s words and demeanour aggravated situation – Authority assessed applicant’s contributory conduct at 10 percent – Found provisions of Accident Compensation Act 2001 prevented Authority making any order for compensation for medical costs of pain and suffering from punch because costs were damages arising directly from personal injury suffered by applicant – Found permissible to compensate applicant for proven emotional distress arising from unjustifiable dismissal to extent effects could be separated from damages arising directly or indirectly out of personal injury – Found applicant’s desire for retribution was manifestation of humiliation, injured feelings, and lost dignity – Found no other evidence of loss – Found $2,250 compensation for humiliation etc appropriate – Shearer |
| Result | Application granted (Constructive dismissal) ; Compensation for humiliation etc ($2,500 reduced to $2,250) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Accident Compensation Act 2001 s317(1);Accident Compensation Act 2001 s317(2);Accident Compensation Act 2001 s317(3);ERA s124 |
| Cases Cited | McGrory v Ansett New Zealand Ltd [1999] 2 NZLR 328;Smith v Blue Mountain Lumber Ltd [2004] 2 ERNZ 364 |
| Number of Pages | 7 |
| PDF File Link: | ca 218_10.pdf [pdf 23 KB] |