| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 101 |
| Hearing date | 7 Jul 2010 |
| Determination date | 16 March 2011 |
| Member | Y S Oldfield |
| Representation | D Flaws ; G White |
| Location | Auckland |
| Parties | Kerai v Stevenson Engineering Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Poor performance - Applicant claimed suffered unjustified disadvantage when given two warnings and placed on performance management programme (“PMP”) - Applicant claimed dismissal unjustified - Applicant issued with first verbal warning after injured back changing heavy tool - Respondent claimed applicant attempted to change tool by himself when had been instructed two people required for safe changing of heavier tools - Claimed applicant breached health and safety protocols causing injury - Authority found applicant not issued with clear and formal directive about safety protocol to be followed at all times - Found applicant not fully and properly informed about relevant safe work practices - Found first verbal warning unjustified - Applicant received final warning for allegedly unauthorised purchase - Applicant given permission to purchase new boots but at same time purchased belt without seeking authorisation - Found applicant had complied with purchasing procedures in past - Found applicant ought to have known needed authorisation - Found second warning justified - However, found as first warning unjustified second warning should properly have been a first warning - Applicant experienced intense pain where had previously injured back - Applicant went to doctor - Applicant certified unfit for work for day - Applicant informed respondent - Applicant instructed to come into work to get restricted duties form to take back to doctor - Respondent did not return to get form - Were issues around whether applicant entitled to ACC cover and what duties applicant fit to perform - Following investigation and disciplinary process applicant dismissed - Applicant dismissed for failing to take restricted duties form to doctor, changing ACC claim so as to become eligible for cover resulting in lost time injury for respondent, unsatisfactory improvement in performance, including disrupting workforce, and loss of trust and confidence - Authority found failure to arrange for form to be provided to doctor not matter which, viewed objectively, could be said to go to trust and confidence - Found while code of conduct required employees to take form with them applicant in severe pain at time - Found unreasonable for respondent to expect code of conduct requirements to be uppermost in applicant’s mind at time - Found respondent unable to explain how applicant changing his story might have affected eligibility for cover - Found applicant entitled to talk freely with doctor about health issues and not required to jeopardise own health care in order to protect respondent’s accident record - Found decision to implement PMP fair and reasonable - However, found plan lacked specifics of problems and improvements required - Found to extent plan not supported by examples was unjustified and as was unlikely to deliver useful performance management it disadvantaged applicant - Found disputing workforce claim related to comment applicant alleged to have made to co-worker - Authority not satisfied applicant given enough information to be able to respond meaningfully to allegation made comment - Found respondent not established applicant’s actions damaged relationship of trust and confidence - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Found appeared applicant very difficult person to work with - Found applicant believed problems result of others behaviour not his own - 30 percent contributory conduct - Found global award for effects of first warning and dismissal appropriate - $8,400 compensation reduced for contributory conduct appropriate - Applicant still unemployed over year after dismissal - Found applicant made some effort to mitigate loss - Found due to applicant’s age, specialised skills and recession losses not indefinitely attributable to personal grievance - Found reimbursement for 26 weeks lost wages to be reduced for compensation appropriate - Fitter and Turner |
| Result | Applications granted (unjustified dismissal)(unjustified disadvantage) ; Application dismissed (unjustified disadvantage) ; Reimbursement of lost wages ($31,200 reduced to $21,840) ; Compensation for humiliation etc ($12,000 reduced to $8,400) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s128 |
| Number of Pages | 19 |
| PDF File Link: | 2011_NZERA_Auckland_101.pdf [pdf 57 KB] |