In 2018, the man started an apprenticeship with Etco, a company that recruits, trains and employs apprentice electricians and describes itself as “one of the leading organisations for apprentice electricians in New Zealand”, according to its CEO Jeremy Sole.
He texted his co-ordinator Russell Rohde one evening in September 2019 after the two had a discussion about health and safety.
“Hey Russell ... would you be able to get or bring another comfy office chair please - the other ones hurt my back (just sitting 6-7 hours on them chairs do ya back in),” he wrote.
The next day, he told Rohde he had recently been diagnosed with scoliosis which was a factor in his back pain.
Rohde said he did not have a replacement chair, and the issue was left hanging while the two men went out on a job.
The man was not happy about this. He was already feeling bullied by Rohde during an earlier conversation about religion and science, he told the ERA, although the two men gave conflicting accounts of the conversation - Rohde said it was a free exchange of ideas, whereas the man said it was an attack on his religious beliefs as “anti-science”.
Back in the office after the chair discussion, the man went to see the doctor about his sore back without telling Rohde.
Unable to find him, Rohde asked where he was by text message, and when told he was at the doctor’s, replied, “Make sure you get a medical certificate. We will need to discuss this.”
Thinking the back pain may be due to a workplace accident, he also asked the man to fill in an accident form to start the ACC process.
The man didn’t consider his request for a different chair to be an accident, but reluctantly completed the form as directed.
Later, Etco asked the man to get his doctor to fill in an Apprentice Electrician Job Task Sheet or JTS, because the company was “unclear about (his) fitness for work” and required advice from his doctor before allowing him to continue.
The man said there was nothing in his contract legally requiring him to provide these, and asked Etco why his apprenticeship was being held back.
A meeting with a senior Etco co-ordinator John Whittaker in October did not achieve much. The two parties “simply talked past each other”, according to the ERA decision.
By then, the man had enough and got a medical certificate from his doctor and also brought his own chair to work, but was told he still needed to complete the JTS.
He sent a personal grievance letter to the Etco CEO, and was told the same - they needed his JTS done.
There was a four-week period of no communication where Etco continued to pay the man. In November, Etco gave him a seven-day deadline to provide the JTS, after which the pay would stop.
In December, the man sent his completed JTS to Etco and claimed back pay through his lawyer.
He went back to work, but after seeing little progress on his back pay and personal grievance claims, resigned in March 2020.
“I was forced into a position where I felt I had no choice but to resign,” he told the ERA, saying he felt powerless and hopeless.
ERA member Peter van Keulen found Etco was wrong to suspend the man. “This was a simple request by an employee for a more appropriate chair because they had a sore back from sitting in the current one,” he said.
This did not give Etco the right to demand a medical assessment on fitness for work in all areas of the employee’s health, and there was no legal basis for it, he added.
The better approach would have been for Etco to get a medical practitioner to certify that a more ergonomic chair would relieve or prevent his back pain, and advise if any other steps could help.
Etco should also have done more to respond to the man’s personal grievances, although van Keulen did not find that the conversation about science and religion with Rohde, as well as the ongoing medical clearance requests to him amounted to bullying.
The man told ERA he suffered from sleeplessness and hair loss because of the ordeal, which also gave him anxiety and low-self esteem.
Etco was ordered to pay him $25,000 in compensation, $4,410 for his unjust suspension and three months pay.
