An employee’s personal grievance for unjustified dismissal has been upheld by the Employment Relations Authority.

The employee suffered a non-work accident and was off work for a considerable period.  When she was well enough for partial work she met with her employer and ACC Case Manager to discuss a graduated return to work.  She was told that day that she had been replaced and there was no work for her.

The ERA held that no process was followed to properly dismiss the employee and the dismissal was therefore unjustified.  The ERA awarded three months lost wages ($5,850), compensation ($7,500) and legal costs ($5,000).

It is important to discuss the inability to keep a position open with the employee and set deadlines for the return to work.

Obtaining medical reports on progress and likely prognosis are also important.

Whether or not an employer can keep the job open will depend on its resources and ability to cover for the person away with current staff or a temporary replacement.

An employer is not obliged to keep a role open, but a proper and fair process has to be followed.

Once again if the employer had followed a proper process it may have justified its inability to keep the employee’s job open, and avoided over $18,000 in awards against it.