At the start of his employment things were going well. Then the working Director decided to go overseas. She prepared eight weeks of rostering arrangements that would cover the period that she was gone. During this eight week period, Mr A was to work 5 – 6 shifts per week. Mr A relied on that forward commitment of hours of work for his own financial obligations.
Unfortunately Mr A suffered an accident before he was able to commence any of that shift cycle. He immediately reported this to his employer, and showed them his ACC paperwork once his injury had been assessed and given initial treatment.
Not long after, Mr A was summoned to a meeting with the Director (before she left for overseas) at which he was dismissed. This was on the basis that his position had become “ redundant”.
Mr A raised a personal grievance for unjustified dismissal. It didn’t take long for the ERA to decide that he indeed had been unjustifiably dismissed. The procedure that ought to be followed in a redundancy situation was absent – there was no attempt to alert Mr A about the need for restructure, no evidence that Nandos proposed a provisional solution or sought responses from staff and no opportunity was provided for staff to comment.
The ERA thought it was blatant that Nandos dismissed Mr A because of his unavailability through injury. This was a matter of convenience rather than his position becoming redundant.
In the end Mr A was awarded compensation of $2,000 for hurt and humiliation, a contribution to lost wages of $2,707.16 (because he had been unable to find alternative employment) and unpaid holiday pay.
If an employee suffers an injury that is not work related, they are entitled to receive the ACC Earners’ Levy. This levy is built into PAYE and paid by the employee as a proportion of his or her income. If the injury is covered by ACC the employee will receive 80% of his or her wages while off work injured.
An employer cannot immediately fire an employee if he or she is injured. However, it is tricky to know what obligations an employer has. The injured employee’s job does not have to be kept open indefinitely, but it would be expected that the job be kept open for as long as reasonably practicable. This of course depends on the circumstances of the employer’s business.
The employee has an obligation to keep the employer updated on the state of their recovery from the injury and the timeframe within which they expect to be back at work.
This is certainly one area where money spent by employers to get the proper advice is worth it .
