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George v Carter Holt Harvey Wood Products
18 Feb 2008, P Cheyne, CA 15/08, (11 pages)
INJUNCTION – Application for interim reinstatement – Prior to hang gliding accident applicant employed by respondent in managerial position – After accident applicant returned to work in part-time capacity and carried out administrative work – Applicant given notice of dismissal when did not return to pre-accident role after six months – Determination solely addressed interim reinstatement claim – ACC sought applicant undergo neuropsychological assessment – Applicant provided assessment report to manager which recommended graduated return to work programme (“GRWP”) – Report also identified alternative work options for applicant – Applicant claimed upon return to work offered computer work but nothing related to previous managerial role – Also claimed no discussion with respondent about GRWP – Applicant met with respondent’s manager (“C”) and ACC case manager and told further assessment needed before could start GRWP – Applicant claimed second meeting held where told for first time possibility of new job if unable to perform previous managerial position – C argued after not receiving copy of initial medical assessment report sought update from applicant’s case manager – Authority found C’s evidence did not go as far as advising applicant that respondent considered terminating employment in light of reports recommending GRWP – Meeting held where applicant claimed informed employee in applicant’s previous managerial position being head hunted by another employer – Second meeting held where applicant claimed told by respondent that could not keep old managerial position open and given one months’ notice of termination – Respondent accepted arguable case of unjustified dismissal – Authority noted applicant’s previous managerial role complex and demanding – Authority found distinctly arguable respondent did not fairly inquire into applicant’s capacity to return to managerial position – Applicant claimed did not know risked dismissal until given notice at second meeting – Authority found problems in communicating issues gave rise to strongly arguable grievance not strongly arguable case for permanent reinstatement – Authority noted GRWP reports predicated on applicant returning to pre-accident role – However, medical reports assessed applicant’s medical capacity for other roles identified by initial occupational assessment report – Applicant also argued respondent pre-determined dismissal by seeking to permanently appoint temporary employee when found out employee being head hunted – Authority found potential financial consequence of not ordering reinstatement pending substantive determination not a compelling factor – Authority saw most telling point supporting interim reinstatement was desirability to maintain employment relationship in event permanent reinstatement finally ordered – Authority noted element of uncertainty reading reports as to applicant’s capacity to perform pre-injury role – Authority concluded while balance of convenience supported form of interim reinstatement should not be on basis that respondent require applicant gradually return to pre-injury position – Authority found in circumstances appropriate to limit effect of injunction – Interim reinstatement ordered on garden leave basis subject to undertaking as to damages and further order of Authority – Interim reinstatement subject to condition that at respondent’s discretion applicant may perform pre-injury work as part of GRWP
Result: Application granted ; Costs reserved
Gregory v Chief Executive of the Department of Corrections
13 Feb 2009, R Arthur, AA 48/09, (10 pages)
INTERIM INJUNCTION – Application for interim reinstatement – Applicant dismissed following respondent’s conclusion that applicant breached code of conduct through contact with partner of prisoner and by searching prisoner records on computer system without legitimate purpose – Twenty-six years service - Authority found two facets of applicant’s case established arguable case – Regarding procedure, applicant claimed respondent improperly gave weight to earlier warnings about which applicant had raised personal grievances – Regarding substantive decision, applicant claimed code of conduct not breached – Respondent accepted that applicant established weak arguable case for purposes of interim reinstatement – Authority found applicant had arguable case – Considering balance of convenience, applicant claimed disadvantaged in seeking alternative employment due to length of service with respondent – Authority found no evidence that applicant attempted to find work, nor any suggesting that applicant unable to do so because of long service, dismissal or economic recession – Authority accepted applicant bore financial burden while awaiting determination, but noted investigation meeting for substantive claim scheduled for ten weeks away – Authority found greater risk of detriment or injury lay with respondent if applicant reinstated – Found respondent able to point to conduct incompatible with continued faithful discharge of employee’s duties – Authority accepted that at interim stage, given applicant’s views on conduct, was real risk that may repeat actions if reinstated – Potential effect on third parties (applicant’s family, respondent’s staff and prisoners) did not favour either party – If applicant substantively successful, later reinstatement and monetary remedies still possible and would adequately compensate – Garden leave inappropriate – Found overall justice lay with respondent – Found respondent’s case appeared stronger which had bearing on likelihood of reinstatement – Authority noted evidential difficulty for applicant due to apparent connection between subjects of allegations, and applicant’s acceptance that visited woman after woman charged with drug-related offences – Authority declined to consider potential negative media publicity and political consequences for respondent – Application for interim reinstatement declined - Principal Corrections Officer
Result: Application dismissed ; Costs reserved
X v Y Ltd
30 Jan 2009, R A Monaghan, AA 28/09, (2 pages)
INJUNCTION – Applicant sought interim declaration and orders – Application heard under urgency – Balance of convenience likely to favour respondent provided relevant aspects of undertaking implemented - Application for interim declaration and orders declined - PRACTICE AND PROCEDURE – Authority made order prohibiting publication of identities of parties
Result: Application dismissed (interim injunction) ; Orders made ; Costs reserved
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