Painters fired employee on sick leave after previous staffer was called a 'baby killer'
A brush hand unfairly fired while on sick leave is the second Employment Relations Authority (ERA) case to go against one Oamaru company in a year.
The ERA has ordered P&W Painters (PWP) – a company that worked primarily in Canterbury – to compensate Paul Morris with $6000 after it wrongfully ended his employment through an ACC case worker.
Earlier this year, Christchurch woman Marsha Whaiapu was awarded $21,000 after it was found she had been subjected to racial taunts by co-workers and called a "baby killer". The company was later ordered to pay her another $8000 in legal fees for failing to respond to the ERA.
But Morris may never receive the money owed to him by his former employer. In the decision he said he pursued his grievance "in principle", knowing the company had applied to be liquidated. Its fate was sealed in the Timaru High Court on September 11, four days after the ERA reached its decision.
Released this week, the decision said PWP director Warren Pitches followed "no procedure whatsoever" in sacking Morris a day after he had knee and ankle surgery.
Pitches did not believe Morris injured himself at work in October 2015. He told an ACC case worker that he did not think Morris "[would] be returning to work for them at all" in December that year, two months before Morris' surgery.
He alleged Morris had a "serious criminal record" and had stolen from him.
In February, Pitches told ACC Morris no longer worked for PWP because he had not kept the company up to date about his injury and recovery.
Morris was "quite shocked" and "unaware that he no longer was employed", ACC notes revealed. He conceded he had not kept the company informed in the past, but was now in contact.
An ACC case worker said the agency could assess Morris' ability to return to work, but was told Pitches "did not want to waste any more time on him," the ERA decision said.
Morris hired an employment advocate in May. In response, Pitches said he had a job for Morris if he was able to work again.
When Morris did not respond or show up to work, Pitches considered it "constituted an abandonment of employment," the decision said.
The ERA considered the offer of work was made "disingenuously, in order to try to disarm".
"Even if the offer was genuinely made, it followed two months after Mr Morris found out from the ACC case worker that he was no longer employed … there was no obligation upon Mr Morris to accept this offer."
Abandonment of employment is a "contractual concept", requiring an employee to miss three consecutive days work without reason or communication, the decision said.
It was "not difficult to conclude that the dismissal was unjustifiable" because Morris knew nothing of Pitches' concerns and PWP never wrote a termination letter.
The ERA ordered PWP to pay Morris $6000, acknowledging his initial failure to keep the company fully informed of his injury and recovery was "frustrating and disruptive" to the small business.
Morris suffered depression after being fired, although he conceded he was also frustrated by not being able to work.
He had since been employed as a traffic controller.