Bipolar security guard unfairly sacked

STEVE HOPKINS
Last updated 05:00 26/11/2012

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A man hired to be a security guard who didn't tell his employer that he suffered from bipolar disorder and depression was unjustifiably dismissed but hasn't been awarded any costs.

Simon Cook was hired by Allied Investments Limited on 12 March this year and did his first shift on 22 March as a sole charge guard looking after a multi-million dollar facility that used highly dangerous chemicals.

He was dismissed three days later by phone after he called his boss at 3am the morning before his second shift in a ''hysterical state'' to say he wouldn't be coming in. 

Cook then complained to the Employment Relations Authority that he was unjustifiably dismissed. 

A recent authority decision details how on March 23 - a day after he started work - Cook gave his employer a medical certificate from the Auckland Mental Health Crisis team saying he wasn't fit to return to work for three days. 

Allied Investments then contacted him saying they were concerned he hadn't told them about his medical conditions before they hired him, which may result in him losing his job.

On March 25, the company phoned Cook again and fired him under the 90 day trial provision while also citing his failure in disclosing his medical history.

The authority was told that as part of the recruitment process Cook was required to complete an application form disclosing ''any physical, medical, or other condition which may affect how you do the job you have applied for''. 

Allied further required potential employees to state any other injury or illness they had suffered from that may affect their working capabilities and provide a copy of their recent medical history.

The applicant had to sign the document to signal they had provided ''truthful answers''.

Cook denied having any conditions, but consented to supplying a copy of his recent medical history. 

He told the authority he believed if he'd been honest with Allied he wouldn't have got the job and that he believed their questions breached the Privacy Act. 

The authority said Cook's medical conditions were ''absolutely relevant'' as Allied needed to ensure Cook's safety in their workplace as well as that of other staff and had an obligation to their clients.

And Cook, the authority said, had an ''obligation of good faith'' to inform them.

The authority found Allied could not use the 90 day trial clause to fire Cook as that wasn't mentioned in his contract. 

They also said Allied shouldn't have contacted him while he was on sick leave and should have given him an opportunity to discuss the situation before he was fired.

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''The fact remains that the call should not have been initiated by a good and fair employer when an employee was on sick leave, even if the sick leave came as something of a bolt out of the blue."

However, ''reluctantly'' the authority found Cook was ''entirely responsible'' for the circumstances which led to his dismissal so wasn't entitled to any remedies.

- Auckland Now

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