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Health and Safety: Court Decision Work Related Injury

Westlaw NZ

George v Silver Fern Farms Ltd [2013] NZERA Christchurch 115, 25 June 2013

The Employment Relations Authority has rejected a meat worker's claims that she couldn't be dismissed for medical incapacity because her injury was caused by work and that she was discriminated against on the grounds of her race, colour and/or ethnic origins.

George started working for the company in March 2008. In August 2008 she sustained an injury to her wrist and lodged an ACC claim. She received weekly compensation from the company, who was in ACC's Partnership Programme and was therefore was responsible for managing its employees' work injury claims.

Until November 2011, George was on weekly compensation or parental leave. She then worked for the company in a range of temporary clerical roles as part of her vocational independence programme (VIP). When George's VIP ended in March 2012, the company tried to find her non-production work (as her injury precluded her from duties that involved heavy lifting or repetitive use of her wrist or thumb).

George's weekly compensation payments ended in June 2012 as she was considered to have reached vocational independence, and in August 2012 the company ended her employment as it had been unable to find her suitable non-production work. George pursued a personal grievance. Her claims included a claim that the company could not dismiss her for incapacity because it had caused her injury in the first place (she alleged the company failed to properly train her in the use of knives).

The Authority was not able to consider whether the company breached its health and safety obligations because George did not raise a personal grievance in relation to this allegation within the requisite time limit. However, the Authority commented that it has previously been argued in situations of workplace injury that an employer has a limited ability to dismiss the injured employee and bears an increased responsibility to redeploy.

The Authority held there is nothing in the Employment Relations Act 2000, nor in case law, which prevents an employer from justifiably dismissing an employee who is no longer able to carry out his or her duties when that incapacity has been caused by the employer, provided that a fair and lawful procedure has been followed. Otherwise, an employer would be forced to have on its books indefinitely employees who have ceased to be able to carry out any duties required by the employer.

George also claimed she was discriminated against because she was of African descent and was dismissed, while non-African workers of New Zealand descent had suffered similar or worse injuries than hers but had been able to continue to carry out light duties. She gave the comparator of a worker who had suffered the amputation of some fingers while operating a saw and was unable to return to his work operating a saw, but was employed as a packer once he had recovered.

The Authority referred to New Zealand Workers IUOW v Sarita Farm Partnership [1991] 1 ERNZ 510 (LC), where it was held that "The question for the Court is whether it has been shown that, but for one of the reasons mentioned in the section, the worker would not have been dismissed". George did not provide any evidence showing the company was motivated by her colour, race, ethnic or national origins in deciding to dismiss her. There was a material difference between George and the injured worker who was not dismissed, in that the other worker's injury did not preclude him from carrying out a core duty required by the company (packing) whereas George's injury did. That was the reason for the difference in treatment between the two employees; not George's colour, race, or ethnic origins.

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