Court of Appeal remits case to Employment Court after it fails to consider discrimination issue…

An employee has been dismissed for breaching a liquor ban at the worksite. The employer’s General Manager noted that the employee’s status as a union delegate and a health and safety representative was a factor taken into account when deciding to dismiss him.

The Court of Appeal has allowed an appeal from the Employment Court which found the dismissal to be justified.

The Court of Appeal held that the Employment Court focussed exclusively on whether the employer’s actions were what a fair and reasonable employer could have done in all the circumstances, and thus failed to consider whether the employee had been discriminated against. In particular, the Court did not consider whether the employee would have been dismissed if he was not a union delegate or a health and safety representative.

The Court of Appeal found that the discrimination aspect of the case should have been treated as a separate issue, and has remitted the employee’s personal grievance claim back to the Employment Court for determination.