Injured employee 'unjustifiably' sacked after return to work

An employee who was terminated at work after returning from an injury has been awarded over $50,000 for being "unjustifiably dismissed" by his employer.

Tovio Ugone has been employed by Star Moving at its Wellington Depot since 2017 before he was promoted to operations manager in July 2018.

He filed a claim at the Accident Compensation Corporation (ACC) in June 2020 after suffering a knee injury at work that also left him unable to perform his duties until Aug. 13, 2020.

But by the time Ugone told Star Moving that he could return to work on "restricted, sedentary duties”, he was informed through a letter that his role was disestablished because of restructuring and his extended absence.

This prompted him to file a case against his employer with the Employment Relations Authority (ERA), claiming that he was unjustifiably dismissed from his role and that Star Moving breached the Employment Relations Act 2000 by failing to provide him a copy of his Individual Employment Agreement.

Star Moving's defence

In defence of Star Moving, sole director Stuart Biggs denied that Ugone was dismissed from his employment due to his injury, claiming that his role was only "disestablished" and that there was a "redundancy."

The letter provided by Star Moving to the ERA offered Ugone a new role as Class 2 driver, but also asked when he could return to work in full health and if he could return the company phone.

Biggs also claimed that an assistant manager also contacted Ugone to tell him that there would be no financial disadvantages in his new role.

In addition, Biggs also argued that they tried to contact Ugone to discuss the restructuring, as well as the timeframe on when he could return to work.

ERA's decision

ERA member Rowan Anderson sided with the employee on the case, rejecting several claims made by Biggs in relation to the matter.

According to Anderson, the Star Moving's letter to Ugone "amounted to a sending away," while pointing out how the company asked for their phone back.

"Although there was a vague offer made as to the possibility of an alternate role, Star Moving clearly ended the employment relationship at their initiative by advising Mr. Ugone that his role had been disestablished and in asking him to return the company phone," Anderson said in his ruling.

The Class 2 driver offer would have also been "substantially different" from Ugone's previous role, Anderson said.

"Mr. Biggs knew that Mr. Ugone could not perform the Class 2 driver role at that time," Anderson said. "That was evident from an ACC Medical Certificate Mr. Ugone provided to Star Moving on 13 August 2020 advising that he could perform only limited duties of a sedentary nature."

Anderson also rejected Biggs' claim that the company attempted to communicate with Ugone about the new role and the company's restructuring.

"I find that Mr. Ugone was dismissed from his employment on 17 August 2020," Anderson ruled.

In addition, Anderson also shot down Biggs' claim that the company wanted to engage Ugone regarding his absence from work after not being able to provide evidence of its attempts.

Anderson also acknowledged that Ugone kept Star Moving up to date with his injury, including providing the company information from medical practitioners.

"Star Moving did not seek, for example, further medical information as to the expected recovery time or a date on which Mr. Ugone might be expected to return to work on full duties," Anderson said. "Indeed, I find that if Star Moving had taken appropriate steps, it would have been clear that Mr. Ugone could have returned to work and performed, at the least, most of his duties."

Anderson also said Star Moving did not consult Ugone on the proposed alternate role, adding that there were no notifications from the employer's end until the dismissal letter was handed over.

"It is abundantly clear that Star Moving treated Mr. Ugone in a procedurally unfair and unjustifiable manner," Anderson said. "I find that Star Moving unjustifiably dismissed Mr. Ugone."

The ERA then ordered Star Moving to pay Ugone $28,275.09 as compensation for lost wages, $842.25 for the employer Kiwisaver contribution, as well as $27,500 for Ugone's hurt and humiliation.