A worker who suffered persistent and debilitating migraines has been awarded more than $17,000 after losing his job. 

Shane Hawkins was employed by Wellington firm MRL Power Solutions as a mechanical technician in late 2018. 

By late 2019 and early 2020, Hawkins began getting "letters of concern" and a written warning over his lateness for work and non-attendance, which stemmed from persistent migraines he had disclosed before being taken on by the firm. 

Redundancy followed, which triggered a claim of unjustifiable dismissal, on the grounds it was neither genuine nor procedurally fair. 

The company argued the loss of its major client as justification for making Hawkins redundant. 

Hawkins had initially been employed on a short-term basis but then entered into an individual employment agreement with MRL in December 2018. 

Hawkins told the company then he suffered from recurrent migraines, and often took prescribed codeine to manage the pain. 

This meant that he would expect to test "non-negative" for opiates if drug tested. 

He also provided a letter from his doctor confirming his use of paracetamol/codeine for migraine headaches. 

His doctor said the medication was "well-tolerated" by Hawkins, and it did not raise any significant safety concerns from an employment perspective. 

The migraines continued, which meant Hawkins was late for work at least once a month, and sometimes as often as once a week. 

If he woke with a migraine, he would need to wait for his pain medication to take effect before he was able to go to work. 

Initially, there was no problem with this. The firm's general manager at the time, Terry Patterson, said if Hawkins texted him early enough, he could accommodate the absences. 

He would "adjust and prioritise tasks" to ensure appropriate work was available for Hawkins, who was paid by the hour, on the days he needed to start late. 

Patterson resigned from MRL and his role was taken over by the owners of the company, Richard and Aletia Head. 

MRL had a significant contract with Wellington's CentrePort, but MRL knew the contract was finite. 

Work was assigned at daily meetings starting at 8.30am, but if Hawkins was late, the work needed to be done that day was assigned to others. He would arrive late to find there was no work for him. 

Aletia Head said Hawkins' lateness put MRL at risk of breaching its contract with its major client. 

Employment Relations Authority member Claire English said in her decision released this month that the amount of sick leave Hawkins took meant he quickly used up his paid sick leave entitlements, which meant his sick leave was often unpaid. 

In the year he was employed Hawkins received three "letters of concern" relating to his sick leave and/or absences from work, and a written warning. 

He and the company then navigated the challenges presented by Covid-19, followed by an allegation Hawkins had falsified timesheets. 

Disciplinary action was withdrawn when Hawkins' explanation over how he filled out his timesheets was accepted. 

At the end of July 2020, MRL's contract with CentrePort ended, causing an immediate revenue loss of around $30,000 per month. 

A month later Hawkins was handed a consultation document, proposing a restructure of MRL's mechanical team, which meant a reduction of one worker. 

The company claimed there were no longer adequate resources to maintain the same level of staffing. 

Hawkins applied for one of the positions in the newly created structure, but the senior job was given to the incumbent. 

He felt he was too qualified for the lesser-paid junior role and that the apprentice role was held by his employers' son. 

Hawkins was made redundant in September 2020 but two months later found a new job. 

He raised a claim of unjustified dismissal and sought various remedies, including lost wages, as his new job was lower paid. 

Hawkins' claim that his redundancy was not genuine was based on two factors, including a "severe personality conflict" between himself and Aletia Head, and that she was attempting to find a way to make him leave his job. 

The Heads rejected this, and said they were entitled to be concerned about Hawkins' repeated absences from work. 

It was also appropriate for them to be informed by Hawkins as soon as possible when he would not be attending work on time, so that they could arrange for work to be performed by others in his absence. 

The ERA said it was not entirely clear that the Heads knew the full extent of the flexibility extended to Hawkins before Patterson's departure. 

Hawkins had benefited from this, and when that flexibility was withdrawn, it was a change for him. 

The ERA found that the redundancy itself was for genuine business reasons, but MRL failed to "fairly and properly provide all relevant information" at the time of consultation. 

It was not only a breach of MRL's duties, but it also undermined Hawkins' ability to understand why his role was being disestablished, and therefore his ability to contribute meaningfully to the restructuring process. 

"It deprived him of the essential reassurance that should have come with having his employment terminated by reason of redundancy, that is, the assurance that this was a process focused on the needs of the business, rather than any wrongdoing on the part of himself as an employee, or because of his migraines and sick leave," English said. 

She said Hawkins' dismissal was unjustified which meant he was entitled to remedies including $4600 in lost wages and $12,000 compensation for humiliation, loss of dignity, and injury to feelings. 

The remainder was payment of holiday pay, and outstanding sick leave. 

- by Tracy Neal, Open Justice