Employer penalised $8000 plus lost wages for injury dismissal…

In a recent Employment Relations Authority decision, an Employee was granted $8,000 compensation for hurt and humiliation in their person grievance claim after being unjustifiably dismissed by her employer. The employee had missed 18 work days as a result of a work related injury.

The ERA will look to see if the employer’s actions were fair and reasonable under the circumstances at the time the employee was dismissed.

Any adverse decisions in relation to the employment of staff made by employers must be in good faith. This includes providing the employee with as much information as possible and giving the employee an opportunity to comment before the final decision is made.

In this case, the employer dismissed the employee, in her absence, due to her incapacity to complete the normal duties of her job and without informing her of the concerns they held in regards to her ability to continue working. In addition she was not given any opportunity to respond.

A fair and reasonable employer must carry out a thorough investigation into the circumstances regarding the employee’s absence. This might include assessing;

1.         their current and future workload,

2.         the impact the absence of the employee has on other employees,

3.         whether the existing employees’ workloads can be adjusted to cover the absentee,

4.         the continuing costs incurred by the employee’s absence,

5.         an employer should obtain medical evidence, a prognosis and what adjustments could be made to support the return to work,

6.         and lastly, when the employee will be fit and able to return to normal work duties.

Holding a job open for an employee can be a financially draining exercise for an employer but the repercussions when not acting fairly and reasonably and with good faith can be a lot worse. Keeping communication lines open between employer and employee in these circumstances is vital.  As well as the compensation the employee also received lost wages and the employer’s contributions to her KiwiSaver for the time it took for her to find new employment.

Alan Knowsley

Employment Lawyer Wellington