Factory fair to dismiss injured worker

Boyd Nelson was a maintenance technician for Open Country Dairy Limited (OCD) and suffered serious injuries when he fell down a ventilation shaft in a factory. Photo / 123RF

A man who suffered serious spinal and pelvic injuries after falling down a ventilation shaft at the factory where he worked was dismissed from his role less than two years after his injury.

Boyd Nelson was given notice his role as a maintenance technician for Open Country Dairy Limited (OCD) would be terminated on March 31, 2015, 22 months after he fell down a 5 metre shaft while changing a filter in the factory's ventilation system.

Nelson suffered serious spinal and pelvic injuries and a broken ankle. He had emergency surgery and stayed at a specialist spinal unit for six weeks. He required ongoing specialist care and an intensive rehabilitation programme for months after the accident.

A year after the injury, Boyd returned to work for light duties under a graduated return to work programme arranged by ACC. Ten months through that programme his employer said his position would be terminated because of medical incapacity.

After gradually building up to working 16 hour weeks an occupational medical specialist advised Nelson would not manage returning to his pre-injury role. He could work full time in a role where he would work at ground level without any heavy lifting and carrying, the doctor advised.

OCD gave Nelson one month's notice that his employment would be terminated because he was unable to carry out his duties.

Nelson went the Employment Relations Authority (ERA) with claims he was unjustifiably discriminated against on the ground of disability and that his dismissal was unjustified.

OCD denied the allegations, saying the company had been supportive and sympathetic of Nelson and had made every endeavour to support his return to full time work.

Nelson submitted to the ERA that his employer did not adequately accommodate his injury and conducted a flawed process when determining he was unable to carry out his duties.

The ERA did not agree with Nelson and found OCD had been fair and reasonable when it came to the conclusion Nelson could no longer do the job he was employed to do.

However, the ERA found OCD had unjustifiably disadvantaged Nelson by not providing him with outplacement assistance, such as assistance with writing a CV or with interview skills. The ERA said Nelson was offered a morning tea, which he turned down, and a written reference, but no other support was giving on his exit from the company.

Nelson was awarded $2000 compensation for the loss of benefit the assistance could have provided and $1000 compensation for injury to his feelings.

Read the full decision here: