A Tauranga tavern that fired a woman after she broke her ankle at her brother’s funeral has been ordered to pay her $11,000.
Patricia Jesson filed a complaint with the Employment Relations Authority (ERA) after her employment was terminated in October of 2015.
Jesson claimed she was owed holiday pay and was unjustifiably dismissed. The ERA member ruled she was not owed holiday pay but awarded her $5985 in lost wages and $5000 for emotional distress.
Jesson was a bar manager at Judea Tavern for several months in 2015.
In late August she fractured her ankle at her brother’s funeral. A doctor put her leg in a cast below the knee and told her not to put any weight on her ankle for five weeks – meaning she couldn’t work.
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Jesson kept her employer up to date with the development of her injury and provided medical documentation. She was under the impression her job was being kept open for her, but when her ACC assessor contacted her manager Frank Wade in October they were told Jesson’s employment had been terminated when she sustained her injury.
The only paper documentation of this dismissal was a hand-delivered note from Wade Jesson found the day after the ACC assessor contacted him, dated for the day before. The letter said she was dismissed but noted she might be able to return to employment in a different role.
Wade contends that he discussed the dismissal on the phone with Jesson the week prior to the note being delivered, but Jesson disputes this. The ERA found in her favour here, as subsequent emails between the pair make no mention of dismissal.
Employers can legally dismiss employees for medical incapacity but they are required to meet a point at which “they can fairly cry halt”. The ERA did not believe Judea had done this.
“I am satisfied Judea Tavern has failed to undertake even the most rudimentary investigation into Ms Jesson’s likely return to work and failed to raise with Ms Jesson any concerns held about the amount of time she had been absent on ACC in a way that she could respond prior to making a decision to dismiss,” ERA member Vicki Campbell wrote in the decision.
The dismissal greatly complicated Jesson’s ACC claim.
The ERA found she was owed seven weeks wages and $5000 in compensation for emotional distress.