Worker with epilepsy wins unfair dismissal case

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An employee of a Christchurch freight forwarding company has been awarded over $12,000 for unfair dismissal.

Kelly Somerville, who was employed as an administrator by FR8 Base, took her case to the Employment Relations Authority (ERA) after being dismissed in a meeting in February last year.

Laurence Griffith, who was the company’s director at the time, denied that Somerville had been unjustifiably dismissed. He claimed that her epilepsy, and what Somerville had told the company about her condition in the interview process, justified her termination.

He added that Somerville had failed to meet expectations and did not perform her tasks as required.

Somerville alleged that upon being dismissed, she had not been paid the two weeks’ notice outlined in her employment agreement, and also claimed that she was owed lost wages as well as compensation.

According to Griffin, Somerville had been dishonest when she was asked how her epilepsy would affect her work during her interview.

He claimed that Somerville had said she rarely suffered seizures during the day, and that if she were to have a fit it would likely be during the night.

However, Griffin added that Somerville had two seizures during her working hours, one of which occurred during her first month of employment.

Griffin also alleged that Somerville was failing to fulfil her duties at work, adding that he was concerned in regards to her health and safety.

Authority member Christine Hickey rejected Griffin’s submissions, finding that Somerville’s dismissal had been unjustified.

“I do not accept that Ms Somerville lied or misled LDK when she was asked at her interview how much her epilepsy could affect her work,” she said. “Ms Somerville is simply unable to predict when her seizures might occur despite being on the appropriate type and amount of medication. It remains the case that the seizures are unpredictable even though Ms Somerville told Mr Griffin that she is more likely to have a seizure if she is hormonal.”

Hickey added that Somerville had not misrepresented the state of her health to her employer.

“She expressed her opinion based on her previous employment experience that her epilepsy should not interfere with her work,” she said, adding that there was no excuse for the company’s failure to investigate the allegations against Somerville and her competency.
Additionally, Hickey found that there was no way of differentiating between Somerville’s mistakes and Griffin’s daughter’s, as they shared a computer system and login details.

Hickey said that the company’s dismissal of Somerville was not how a fair and reasonable employer would have acted.

The company was ordered to pay $11,000 compensation to Somerville for humiliation, loss of dignity and injury to her feelings, and $1350 for lost and unpaid wages and holiday pay.

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