| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 237/10 |
| Hearing date | 29 Jul 2010 - 30 Jul 2010 (2 days) |
| Determination date | 22 December 2010 |
| Member | P Cheyne |
| Representation | O Graham ; E Butcher |
| Location | Dunedin |
| Parties | Graham v Bank of New Zealand |
| Summary | BREACH OF CONTRACT - Applicant union member and parties subject to collective employment agreement (“CEA”) - Applicant developed chronic arm and elbow problem – Applicant found could not perform certain teller duties as aggravated problem - Applicant ended up in customer services representative (“CSR”) position which did not require performance of teller duties – Respondent initiated consultation about proposal to conflate two positions into one role to be called customer services consultant (“CSC”) - Applicant claimed respondent breached CEA by not properly consulting with her; requiring her to perform different duties without her agreement; and by misleading her about her contractual rights - Authority found respondent entitled to reasonably vary applicant’s duties subject to redundancy provisions – Found applicant given sufficient information about restructuring proposal – Found was sufficient time for consultation – Found respondent complied with contractual and statutory obligations in consulting about restructure – Applicant claimed unreasonable to transfer her to position medically unfit for – Found evidence available to respondent at time did not establish applicant medically unfit for role - No breach of CEA - Application dismissed - UNJUSTIFIED DISADVANTAGE - As alternative to breach of contract claim applicant claimed unjustifiably disadvantaged by restructuring - Authority found s103(3) Employment Relations Act 2000 (“ERA”) excludes from definition of personal grievance any action deriving solely from operation of any provision of any employment agreement – Found even if transfer from CSR to CSC fell within definition of personal grievance, respondent’s actions not unjustified – No personal grievance - Applicant initially performed CSC role without problem – Then due to staffing issues applicant required to perform duties which aggravated injury – Applicant informed respondent and put on light duties – Applicant provided medical certificate and consulted specialist – Applicant claimed unjustifiably disadvantaged when called to meetings without forewarning of purpose or opportunity to be represented - Found as meeting not disciplinary in nature respondent not required to forewarn applicant or give opportunity for representation – Found while might have been appropriate for respondent to have done that failure fell short of any breach of obligation – No unjustified disadvantage - Applicant claimed unjustifiably disadvantaged by respondent communicating directly with her and insisting on resolving matters immediately in breach of s236 ERA - Authority found s236 ERA had no application where employer sought to meet with applicant in present circumstances – Found in some circumstances, employer who persisted with attempts to meet with employee without representative present could create impediment to later proof of justification for action or dismissal – Found also conceivable that employer might breach implied term of relationship not to conduct themselves in manner calculated or likely to damage relationship of trust and confidence - However, found neither was present in this case - No unjustified disadvantage - Applicant claimed area manager (“B”) accused applicant of providing misleading medical certificate, unreasonably refusing rehabilitation and refusing to obtain documents required by respondent – Claimed B insisted on rehabilitation and return to normal duties contrary to medical advice; denied requiring applicant undertake rehabilitation; telling applicant were no alternative duties but insisting on certificate to say that fit only for alternative duties - Authority found B expressed perspective about situation that differed from applicant’s – Found in expressing those views B did not affect applicant’s employment or any condition of employment to applicant’s disadvantage – Found while exchanges upsetting for applicant and frustrating for respondent did not give rise to any actionable breach of obligation owed by respondent to applicant – No unjustified disadvantage - UNJUSTIFIED DISMISSAL – Incapacity – Applicant claimed dismissal for incapacity unjustified - Applicant claimed medically fit for duties required of position for which employed although accepted not medically fit for cash handling duties – Authority found claim could not survive Authority’s finding that respondent lawfully varied applicant’s duties to include cash handling as part of CSC position - Found therefore respondent’s view applicant not able to resume work as result of physical injury was view that any fair and reasonable employer would have come to - Found respondent scrupulously complied with requirements in CEA - Found no basis for suggestion B improperly predetermined situation - Dismissal justified - Customer services consultant |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s61(1);ERA s63A;ERA s63A(2);ERA s63A(4);ERA s68;ERA s68(2);ERA s69;ERA s103(3);ERA s236;ERA s236(1) |
| Cases Cited | Gurnell v School Centre Irene Ltd unreported, A Dumbleton, 22 Jan 2008, AA 18/08;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 24 |
| PDF File Link: | ca 237_10.pdf [pdf 85 KB] |