| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 150 |
| Hearing date | 25 Nov 2010 |
| Determination date | 13 April 2011 |
| Member | A Dumbleton |
| Representation | A Taylor ; J Douglas |
| Location | Auckland |
| Parties | Preston v Transportation Auckland Corporation Ltd t/a NZ Bus |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant resigned because working for another bus company – After returning to work following work-related accident, applicant suffered further injury – Differing professional views given about applicant’s ability to work – General Manager advised would assist applicant to find another job within or outside respondent company – Respondent later suggested applicant’s performance monitored as applicant thought fit to operate buses – Applicant rejected proposal as obtained employment elsewhere – Respondent claimed had not acted with undue caution and reservation about applicant’s return to work warranted by medical opinion obtained – Applicant claimed felt able to carry out all bus driving duties effectively and safely – Applicant claimed provided clear medical evidence to support view ready and able to work – Applicant claimed respondent’s proposal made too late – Authority found nothing to support submission one clinician expected to provide medical opinions that would err on side of caution – Found unlikely any doctor favoured anyone in giving professional advice – Applicant claimed respondent failed to seek further medical advice or initiate appropriate trial at first reasonably available opportunity – Respondent claimed applicant resigned after proposal made – Respondent claimed acted fairly as consulted applicant about ability to drive, considered all medical information and considered whether alternative jobs available – Authority found no dismissal – Found removal of applicant from driving duties reasonable and necessary action – Found respondent had no intention of dismissing applicant – Found applicant left by choice – Found no breach of duty that made resignation foreseeable – Found impasse developed because of differing medical opinions – Found respondent not unduly cautious about safety – Found respondent’s proposal not acknowledgment that earlier stance of declining applicant to return to work unreasonable – Found applicant rejected proposal that would have resolved employment relationship problem – Found applicant ended employment by resignation – No dismissal – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged in employment – Respondent claimed actions taken to rehabilitate applicant after injured did not disadvantage applicant – Found respondent acted as fair and reasonable employer in circumstances – Found disadvantage caused by injury rather than respondent – No disadvantage |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Health and Safety in Employment Act 1992 s6;Injury Prevention, Rehabilitation, and Compensation Act 2001 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] ERNZ 168 |
| Number of Pages | 17 |
| PDF File Link: | 2011_NZERA_Auckland_150.pdf [pdf 52 KB] |