Mr. L was employed by Mr. C (on behalf of the company) as a hammer hand. There was no written employment agreement. Mr. L fell at work while climbing the framing of a house under construction and fractured his forearm. As a result he spent several weeks in cast. Mr. L spoke to Mr. C on the night of the injury and told him that he could be off work for up to six weeks.
Mr. L received ACC earnings-related compensation while he was off work. However, when he received his copy of the ACC Employee Earnings Certificate, it included a note from the company which claimed that Mr. L was under a trial period and that Mr. C had been told to “terminate” the trial. It stated that Mr. L did not have a permanent employment contract with the company.
Firstly an employee cannot be on a trial period without a written agreement. In fact, Mr. L had answered an ad in the paper for a permanent job, so had no idea he was on a trial. It is not that the company was required to “hold open” Mr. L’s job indefinitely but at the very least there was an obligation to talk and consult with Mr. L before any decision was made.
The Authority found that Mr. L has been unjustifiably dismissed. The company denied Mr. L was employed by it at the date of his accident which amounted to a termination of his employment.
Damages for lost wages were not awarded because Mr. L received ACC payments. However the construction company did not pay Mr. L 80 percent of his wages for the first week he was injured, and he was able to recover that money from his former employer. He also got compensated for the humiliation, injury to his feelings and loss of dignity arising from his unjustified dismissal.
Now is a good time to remind all employers out there of your obligations under ACC if your employee is injured in the workplace. There are not a lot of things that you have to do:
You must pay the first week of compensation for lost earnings – at 80% of what they would have earned that week
You must provide ACC with an Employee Earnings Certificate, so the employees weekly compensation can be paid by ACC from the second week onwards
You may need to consider alternative duties which could allow the employee to stay at work. The ACC case manager will explore this possibility with you
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
