Dismissal of injured clerk contested

Press, 9 December 1983, Page 8

Dismissal of injured clerk contested

Andrews and Beaven, Ltd, should have made an extra effort to stand by an employee who required an operation after an accident at home, rather then executing his dismissal, the Arbitration Court was told yesterday. The Court was hearing a personal grievance claim, of Mr Eddy Rynsburger, a former employee of Andrews and Beaven and member of the Canterbury Clerical Workers Industrial Union of Workers.

For the union, Mr M. D. J. Dawson said that Mr Rynsburger had been employed by the company on January 17, 1979, as a service clerk at its Marshland Road premises. On November 7, 1982, Mr Rynsberger told Andrews and Beaven that he had fallen at home and broken his left leg near the hip. An operation was necessary. On January 5, 1983, Mr Rynsburger was asked by the service manager to help with a stocktake. At that time he was receiving accident compensation but agreed to do the job, doing as much of it as possible from his home.

Twelve days later the service manager asked Mr Rynsburger if he could help out for a couple of hours each day. He agreed on the condition that he got medical clearance to do the work, and began working nine days later for two hours a day, three days a week, Mr Dawson said.

On February 2, Mr Rynsburger was called into the branch manager’s office and told by Mr A. R. Price that if he wanted to keep his job he would have to work at least 10 hours a week. Mr Rynsburger’s reference to a medical certificate which said he could work six hours a week if comfortable, resulted in Mr Price saying that an industrial rehabilitation agreement organised between the company and the Accident Compensation Commission overruled that, Mr Dawson told the Court.

Mr Rynsburger agreed to this and began working from 10 and up to 14 hours each week and taking work home at night to finish it. Mr Dawson said this was in spite of increasing pain and discomfort. "On March 29 Mr Rynsburger informed the company that he now needed to have a total hip replacement operation,” Mr Dawson said.

The next day Mr Rynsburger was asked to start training another worker to do his work while he was in hospital. On April 15 Mr Rynsburger informed Andrews and Beaven that the operation had been scheduled for April 28. Three days later he was dismissed by Mr Price, who informed him that the earlier arrangement did not now suit the company, Mr Dawson said.

“Mrs Rynsburger, herself an experienced clerk, offered to do the work normally done by her hus-

band until he recovered. This offer was rejected by the company,” Mr Dawson said.

He maintained that at the time of Mr Rynsburger’s dismissal he was fulfilling at least 80 per cent of his contract of employment. The company was having his work done at no cost to itself as Mr Rynsburger was still on accident compensation.

Another employee, who ultimately ended up with Mr Rynsburger’s job, and normally stood in for him when he was ill or on holiday, could have been brought in to take his place while he recovered from the operation, Mr Dawson said.

Mr Rynsburger said he had wanted to assist the company and thought it would be a good thing for him to do some work while he recovered. However, after a while his hip had begun to deteriorate quite considerably and he was using pain-killing drugs: “At the end I was practically on drugs all day.” His office was up a flight of about 16 steps and he had to go and up down these steps about four to five times in each three hour period, in addition to getting to his office and going home. He was on crutches at the time. “I was not instructed to take work home but I felt a certain responsibility to the job,” he said. He did anywhere between two and seven hours work at home each day, he said. Mr Rynsburger said that after his leg got so bad that he could not drive his car any more, he got a fellow workmate to collect him each day and rang his wife to come and collect him when he was ready to go home. An offer to the company to do all his work at home, having it delivered each night and collected each morning, was rejected, Mr Rynsburger said.

He received his final accident compensation payment on November 18, although he had received a final clearance for selected work on July 20. Since losing his job at Andrews and Beaven, for which he was paid $222.74 gross weekly, Mr Rynsburger said he had applied unsuccessfully for 23 other jobs. In answer to a question from Mr N. A. McPhail (for Andrews and Beaven, Ltd), Mr Rynsburger said answering telephone and radio-telephone calls made up between 25 and 30 per cent of his work. This answering would be done by the service manager or one of the mechanics in the absence of the service clerk.

Mr D. S. Bruce, a field officer of the Canterbury Clerical Workers’ Union and former employee of Andrews and Beaven in the process machinery division at Moorhouse Avenue, told of another employee of the company who had been on full pay for a year while sick. This person had returned to his former posi-

tion for about 18 months before retiring, Mr Bruce said. Mr Bruce, who is also a shareholder of Andrews and Beaven, said at the time Mr Rynsburger was dismissed the company was discussing a merger which would result in redundancies. Mr McPhail said the company had held Mr Rynsburger’s job open for 5% months but they could not be expected to put up with a backlog for much longer. “The company concluded that it could no longer keep Mr Rynsburger’s job open,” he said. Mr McPhail said there were precedents for an employer replacing an employee when the work could not be done and the worker was not entitled to sick leave.

The job of service clerk held a “fair degree of importance,” Mr Price told the Court. He estimated it would take about two months to train someone in the job, in spite of the fact that Mr Rynsburger said he had learned the job in in about two days.

Mr Price said he did not know that Mr Rynsburger had only been cleared to work for six hours when he asked him to work for 10 hours each week. He had received his information from the A.C.C., he said.

Mr Price said he had offered to have Mr Rynsburger taken home if he was in pain. He said he was aware he was on painkillers, but not of the extent of his pain. There was no necessity for Mr Rynsburger to walk up and down stairs, Mr Price said, but Mr Rynsburger had said the exercise was good for him when an offer of a forklift with a personnel cage on to get him up to the higher level was made. Mr Price said he was not aware of Mr Rynsburger taking work home with him, and this was against company policy. He also said he did not know Mr Rynsburger had come in for the stocktake in January: he had been on holiday at the time but would not have allowed it had he been there.

Mr Price said that the man put in the office for Mr Rynsburger to train in preparation for his absence for the operation had turned out not to be comfortable with the work and was returned to his own department. There was a backlog of filing, machinery work cards and service invoicing at the time Mr Rynsburger was dismissed, Mr Price said. It had taken two employees two weeks to clear this backlog. The company had looked around its different departments for a temporary fulltime person to take over Mr Rynsburger’s job while he recuperated from his operation, but none could be found. The three weeks from when Mr Rynsburger informed the company of the

date of the operation and the date of Mr Rynsburger’s dismissal were spent looking for an alternative for the dismissal. Mr Price said.

An internal transfer was made to fill Mr Rynsburger’s job after his dismissal and a former employee was re-employed to fill'that position.

Mr Price said that at the time the decision on the dismissal was made he had no idea there were going to be any redundancies. The group personnel manager at Andrews and Beaven at the time of the dispute, Mr V. M. Busby, said he was aware of Mr Rynsburger’s situation from shortly after he first broke his leg. After approaches from Mr Price, Mr Busby said he made inquiries about a temporary replacment from within the company on three occasions. These were in November, February and in the three weeks before Mr Rynsburger was dismissed.

Mr Busby agreed that he had not contacted any of the employment agencies in an effort to find temporary help. He said he had followed advice from within the company that training to fit the company's methods would make this impractical. Also he was not sure that Mr Rynsburger would be ready to resume work after eight weeks. “We had reached a period of time . . . when a decision had to be made that would give us the continuity that was needed,” Mr Busby said.

Mr Busby denied that Mr Rynsburger’s proximity to retirement age had anything to do with the decision to dismiss him.

In summing up, Mr McPhail said that the termination of employment was based on a contract that was not able to be met.

Mr Rynsburger had experienced pain and suffering and the company had experienced inconvenience and backlog, he said.

The actions of Andrews and Beaven were those of a just employer, Mr McPhail said, an employer which had kept a job open for three months.

“Reinstatement would be in appropriate give the situation of the company,” Mr McPhail said.

Because Mr Rynsburger had been on accident compensation for so long the issue of lost wages did not enter the argument, he said.

Mr Dawson said the company should have made an extra effort to stand by Mr Rynsburger rather than executing his dismissal.

“It would not have been unreasonable to have waited for another few weeks to see the result of the operation,” he said.

“The applicant finds it difficult to believe that such a large employer couldn’t reshuffle to cover one employee,” Mr Dawson said. The Court, comprising Judge Castle, Mr E. W. J. Ball and Mr N. West, reserved its decision.