| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 533 |
| Hearing date | 29 Aug 2011 - 5 Sep 2011 (3 days) |
| Determination date | 15 December 2011 |
| Member | R Larmer |
| Representation | M Treen ; M Moncur |
| Location | Auckland |
| Parties | Bidois v St George International Group Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent as result of warning – Principal (“M”) prepared response to Academic Board Report – Staff concerned about M’s response – Applicant as union delegate presented concerns on behalf of staff – Authority found applicant compiled document that was accurate reflection of staff feedback – M agitated because viewed applicant’s report as attack on management – Applicant told by M to stop reading report three or four times but did not because was one opportunity for staff to discuss issues raised by M – Found meeting became confrontational because number of people tried to put forward views simultaneously – Found nothing in applicant’s demeanour or presentation that was inappropriate or unacceptable – Found meeting became tense because of M’s actions – M claimed because applicant refused to meet to discuss meeting, disciplinary process appropriate – Applicant invited to attend disciplinary meeting but no details given about applicant’s alleged behaviour which had resulted in breaches – M requested staff to sign statement M prepared about applicant’s actions and other staff at meeting – Found M’s actions inappropriate way to investigate concerns – Found M not appropriate person to investigate concerns given M’s hurt as result of meeting – Found applicant not put on notice of specific allegations to respond to – Found disciplinary letter contained new allegation applicant absent from class without M’s approval – Found no serious misconduct as Head Teacher (“B”) claimed told M was covering applicant’s class so applicant could prepare for investigation meeting – Found applicant not given full or proper opportunity to provide explanations – Found because of M’s predetermined view, failed to properly put concerns to applicant – Applicant issued with written warning because abandoned class – Found respondent not justified in concluding applicant abandoned class as arranged with B for cover – Found process adopted unfair from outset – Found M key witness, main complainant and decision maker – Unjustified disadvantage – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant sent email to school management team in which questioned appointment of management team member (“P”) – Applicant apologised to P – P complained applicant failed to hand in written commitments set out in warning letter – Found M improperly changed P’s complaint letter – Applicant invited to attend disciplinary meeting but letter failed to explain what specific behaviour of concern or policies or instructions breached – Union representative (“I”) emailed M and stated issue should not be treated as disciplinary concern because issue to do with leadership and relationships – M rejected proposal to suspend disciplinary action – M gave I redrafted complaint letter not original – I advised applicant not to attend disciplinary meeting before obtained information about complaint – Found not unreasonable position to adopt – Found M unreasonably denied request that other people less directly involved in matter should deal with disciplinary process – Found M not impartial decision maker – Found M did not raise disciplinary concerns when originally responded to applicant’s email – Found email could not reasonably give rise to legitimate disciplinary concerns – Found number of irrelevant matters discussed at disciplinary meeting and applicant not on notice that new matters would be discussed – Found inappropriate for P to have input into decision to dismiss – Found decision to dismiss was fundamentally M’s – Found dismissal letter fundamentally defective – Found letter did not explain what policies or procedures applicant had allegedly breached – Found decision to dismiss not one which fair and reasonable employer would have reached in all circumstances – Found applicant’s actions did not constitute serious misconduct – Found applicant deprived of real opportunity to respond to respondent’s concerns – Found M did not approach matter with open mind – Found applicant’s dismissal substantively and procedurally unfair – Dismiss unjustified – REMEDIES – Applicant sought reinstatement – Staff concerned about relationship between applicant and M breaking down again – Applicant claimed M verbally abusive to applicant in writing – Found no evidence to support serious allegation – Found reinstatement not practicable – B did not see how applicant and M could work together in future – Reinstatement not reasonable – Reinstatement declined – $1,893 reimbursement of lost wages appropriate – $8,500 compensation appropriate – Teacher |
| Result | Applications granted ; Reimbursement of lost wages ($1,893.09) ; Compensation for humiliation etc ($8,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s125 |
| Number of Pages | 22 |
| PDF File Link: | 2011_NZERA_Auckland_533.pdf [pdf 101 KB] |