Employer fails to undertake even the most rudimentary investigation


Ms Jesson claimed that she was owed unpaid holiday pay and that she was unjustifiably dismissed from her employment with Judea Tavern Limited (“Judea Tavern”). Judea Tavern denied the claims.

Ms Jesson was employed as a bar manager for Judea Tavern in May 2015. On 28 August Ms Jesson’s brother passed away and she left work at the end of her shift to travel to his funeral. During the funeral she fractured her ankle. She attended hospital and her leg was placed in a plaster cast. On 9 September 2015 Ms Jesson notified her manager Mr Wade that she was not allowed to put any weight on her foot for at least five weeks. She advised that she was due to be reassessed on 12 October 2015. Ms Jesson continued to update Mr Wade on her condition on 17 September, 1 and 12 October. Ms Jesson’s continued absence was also supported at all times by medical certificates. 

On or about 20 October 2015 Ms Jesson’s ACC case manager contacted Mr Wade to discuss Ms Jesson’s return to work. The case manager was advised by Mr Wade that Ms Jesson’s employment had been terminated when she had her injury. On 21 October 2015 Ms Jesson found an unstamped envelop in her letterbox containing a letter from Mr Wade dated 20 October 2015. The letter advised Ms Jesson that her employment had been terminated for medical incapacity. 

The records provided to the Authority showed Ms Jesson’s total gross earnings as $14,928.85. The Authority noted that 8% of her total gross earnings amounted to $1,194.31. The wage and time records showed that Ms Jesson was paid $1,397.15 as holiday pay which equated to an overpayment of $202.84. The Authority found that Ms Jesson had received full payment of all holiday pay. 

Next the Authority considered whether Ms Jesson was unjustifiably dismissed. The Authority reviewed the principles associated with cases on medical incapacity. The Authority noted that the test is whether the point has come “at which an employer can fairly cry halt”. In the Authority’s view this phrase captures the question of how long the employer was obligated to keep a job open.  In a letter dated 20 October 2015 Mr Wade advised Ms Jesson that her employment was terminated under clause 12.6.1 of her employment agreement. This clause made provision for medical incapacity termination.  

However, clause 12.6.2 provided a discretion to seek an assessment and opinion from a medical practitioner and to take into account any reports and recommendations. 

The Authority said that while this action was described as discretionary in the employment agreement, it is good practice to have as much information available about an employee’s capacity for work to ensure a sound decision is made about ongoing employment. The Authority also considered that Mr Wade did not attempt to meet with Ms Jesson about her injury or return to work. 

The Authority held that Judea Tavern failed to undertake even the most rudimentary investigation into Ms Jesson’s likely return to work and failed to raise with Ms Jesson any concerns held about the amount of time she had been absent on ACC in a way that she could respond prior to making a decision to dismiss. The Authority found that the breaches of process resulted in Ms Jesson being treated unfairly such that the dismissal was unjustified. 

The Authority awarded Ms Jesson $5,985 in lost wages and a further $5,000 in hurt and humiliation compensation. 

Jesson v Judea Tavern Limited [[2016] NZERA Auckland 351; 18/10/2016; V Campbell]


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