Morris v P & W Painters Limited

Having staff absent from work for prolonged periods due to accidents and managing their return to work is a headache for many employers. This case is alarming because a comment made to the ACC Case Manager in frustration was viewed by the Authority as a dismissal.

Mr Morris was a brush hand with P and W Painters and in October 2015 rolled his ankle. A fortnight later when he was due to return to work he slipped in the shower and damaged his knee which started him on a long spell on ACC. In late December the employer was talking to the ACC Case Manager and commented ‘that he does not think that [Morris] will be returning to work for them at all’. Two days later there was a further conversation with ACC where the comment was made that Morris ‘cannot go to work until he is fully fit, however, at this stage in time he may not have a job to come back to’.

Morris remained unfit to work and had surgery in February. Another manager for the company phoned ACC in frustration to ask what was happening and why he wasn’t back at work. In March ACC contacted the employer again to arrange for a return to work worksite assessment. The ACC note stated that the employer “‘does not want to waste any more time on him’ and was very upset/angry with the ACC process and [Morris]”.

The Case Manager then spoke to Morris and advised him that he no longer works at P & W. Morris raised a personal grievance in May and the employer immediately said there was a job for him to start on but Morris never turned up, and in fact was not cleared to return to work until December. Meanwhile the company had gone into liquidation.

The personal grievance process continued and the employer claimed that Morris had abandoned his employment by not turning up for the May job or informing him of why he was not attending work. Morris claimed that he was unjustifiably dismissed. He also tried to raise a bunch of other claims late in the piece but the Authority said as these issues hadn’t been raised in the initial grievance it was not appropriate for them to be included now.

The first thing the Authority had to decide is how did Morris’ employment end? It found that he had not abandoned his employment because he had a good reason for being absent, being that he was not fit for work. There was no comment on Morris’ poor record of maintaining contact with the employer during his absence and that he had failed in his duty to do so.

The Authority concluded that when the manager said to ACC that Morris ‘no longer works there’ he was using the Case Manager as an agent to advise Morris of this, and this action was the termination of his employment. It found that the offer of reinstatement in May was disingenuous.

Clearly the process followed was far from adequate to justify the termination of employment, and the Authority quickly reached this conclusion.

Morris was awarded $6,000 hurt and humiliation, which was reduced from $7,500 for failure to keep the employer informed of progress. As the company is in liquidation, it will be interesting to see if he receives his money, but we are unlikely to hear.

This case is interesting because of the role of ACC and the assumption from the Authority member that when the manager made the comment that Morris didn’t work there any more, that it would be passed on to Morris as the termination of his employment.

So often when you have an ongoing situation like this the relationship that is formed with the Case Manager becomes quite candid, especially when the employee is not keeping the employer informed of progress. Managers need very guarded as everything they say is likely to be repeated to the employee, even going so far as to dismiss them.

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