Workplace injury management: ERA examines return-to-work dispute

The Employment Relations Authority (ERA) recently dealt with an employment dispute where a worker claimed he faced unjustified suspension, discrimination, and unfair dismissal after experiencing multiple injuries.

The case raised questions about workplace safety requirements, return-to-work arrangements, and alleged retaliation for making protected disclosures.

The worker argued his employer's actions were unfair and discriminatory, particularly regarding safety equipment requirements and medical assessments.

He sought reinstatement to his previous role, claiming the disciplinary actions against him were unjustified and potentially retaliatory.

Worker’s history of workplace injuries

The worker started as an environmental operator at a dairy cooperative organisation in 2015, reporting to an irrigation officer. His role required working on various types of terrain associated with the dairy industry.

In December 2018, he suffered a toe injury at work that led to significant time off. When he returned in August 2022, the employer provided him with special gumboots for support.

In November 2022, the worker injured his ankle at home. He took leave until June 2023, then returned on restricted hours and limited duties. The employer required him to undergo an Independent Medical Assessment (IMA) in February 2023.

Disagreements arose about the worker's injury disclosures to the employer, ACC, and his physiotherapist. When discussing these issues in a July 2023 meeting, the worker pointed out inconsistencies in the employer's communications: "[the employer] starting the IME process stated that they were aware I had a home injury... so you have these two varying versions, you have a, oh we've found out that you're lying to us and this was a work injury and then you have an official letter from [the employer] saying we know it's a home injury."

The employer initiated disciplinary proceedings in July 2023 over alleged dishonesty regarding the ankle injury. While this matter was resolved, new issues emerged when the worker failed to wear newly prescribed safety boots. This led to a final warning in August 2023, followed by dismissal in October 2023 after he didn't attend an assigned shift.

Dispute regarding safety equipment requirements

The worker argued he faced discriminatory treatment regarding safety equipment requirements: "Despite a PPE recommendation by the IME that pertained to all workers, it has only been enforced on me. The enforcing of this condition on my employment without the PPE meeting the requirements as listed by the IME was unfair treatment."

Under the Employment Relations Act 2000, workers must raise personal grievances within 90 days of the incident. The ERA examined whether various grievances were raised within this statutory timeframe.

The worker's claims about suspension and discrimination were found to be within time limits, while earlier claims about bullying from 2017 and 2018 fell outside this timeframe.

The ERA assessed the practicality of reinstatement, noting: "Considering all views from the parties in respect of [the worker's] claims, [the employer's] concerns relating to how long [the worker] had been out of the workforce are reasonable concerns."

Workplace safety emerged as a crucial factor in the decision: "a key aspect in the parties' dispute is about how [the worker] should carry out his work in a safe way... This is important because it relates to both [the worker's] safety in the workplace, and [the employer's] health and safety obligations for his safety."

The ERA ultimately declined interim reinstatement, stating: "Based on these concerns and [the employer's] allegations relating to failure to following instruction, the overall justice of this case favours [the employer]."

The Authority directed both parties to attend mediation within 28 days to address the substantive claims.