The Employment Relations Authority has upheld an employee’s personal grievance claim and ordered an employer to pay over $58,000 after unjustifiably dismissing the employee over an injury.

The employee suffered a knee injury at work and had to take two months off for recovery. The employee then supplied the employer with a letter which stated he could return to work for sedentary duties.

The employer replied stating that due to the employee’s extended period of recovery, they had decided to disestablish his position. They offered the employee to return to work in another role, which was very different to his current role. The employer stated in their offer that they looked forward to hearing the employee’s feedback.

The employee did not return to work and raised a personal grievance claim of unjustified dismissal with the Authority.

The Authority decided that the letter stating the employee’s role had been disestablished amounted to a dismissal. Despite the employer’s request for feedback, the employer had not made any prior effort to consult the employee about the disestablishment of his role.

The employer had also requested the return of a company phone, implying that the employee would no longer need it. The employer never attempted to follow up with the employee after the letter of dismissal was sent out.

The Authority decided that these actions amounted to a dismissal.

The Authority also decided that the dismissal was unjustified. When dismissing an employee, an employer must act fairly and reasonably in the circumstances. A fair process includes keeping the employee informed, and requesting and genuinely considering feedback.

In this case, the employer did not consult the employee or request feedback on the dismissal before disestablishing his position. The Authority also rejected the employer’s argument that the dismissal was justified on the grounds of injury.

In this case, the employee had provided medical certificates and information from ACC regarding his injury. The employer failed to seek any further information regarding recovery timeframes.

The Authority decided that the dismissal letter had been sent in response to learning that the employee could only return to work for sedentary duties, and so the dismissal was not justified on the grounds of injury.

The employer was ordered to pay $28,275 in lost wages, $842 for KiwiSaver contributions, as well as $27,500 in compensation for hurt and humiliation. The Authority also ordered the employer to pay a penalty of $6,000 for their breaches.

There is an important process which must be followed when dismissing an employee. If you are confused about this process, it pays to seek advice from a professional with experience in the area.


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Alan Knowsley and Hunter Flanagan-Connors