| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 276 |
| Hearing date | 13 Dec 2010 - 15 Apr 2011 (3 days) |
| Determination date | 27 June 2011 |
| Member | A Dumbleton |
| Representation | W Kim (in person) ; J Douglas |
| Location | Auckland |
| Parties | Kim v Thermosash Commercial Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Incapacity - Applicant claimed unjustifiably disadvantaged as respondent failed to provide safe workplace and applicant's dismissal procedurally unfair - Applicant injured and assessed as unfit for work for three months - Later assessed as unfit for work except for light duties - Respondent told applicant if not fit for work next month employment would be terminated - ACC occupational therapist visited workplace - Respondent claimed did not have light duties for applicant - Respondent terminated employment when received further medical certificate restricting applicant to light duties for further four weeks - After further discussion between parties respondent confirmed termination - Applicant told respondent dismissal lacked fair procedure - Applicant sought compensation for loss of income and respondent's failure to provide safe equipment - Respondent claimed application statute barred and, even if injury result of work accident, only compensation could be sought - Authority found applicant entitled to determination whether had personal grievance although remedies might be statute barred - Respondent denied accident occurred at workplace or failed to take all practicable steps to ensure workplace safe - Parties agreed applicant did not report any accident on day or day after allegedly occurred and doctor's record noted injury occurred during basketball game - Applicant later changed reason for accident in ACC forms - Applicant acknowledged respondent displayed signage about correct way to lift, was expected to seek help from others and accident due to loss of balance, not weight of equipment - Authority found applicant did not suffer disadvantage as result of respondent's unjustifiable action - Found applicant's explanation for failure to report accident lacked credibility - Found respondent investigated possibility applicant injured at work and reasonably considered unsafe for applicant to resume usual duties - Found respondent met good faith obligations and applicant given opportunity to comment on proposal to terminate employment - Found respondent's actions those of fair and reasonable employer - Dismissal justified - Joiner |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Accident Compensation Act 2001;ERA s4(1A);ERA s103A;Injury Prevention Rehabilitation and Compensation Act 2001 s317(1) |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_276.pdf [pdf 28 KB] |