| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 206 |
| Hearing date | 2 Sep 2010 |
| Determination date | 21 December 2011 |
| Member | M B Loftus |
| Representation | G Taylor ; R Harrison |
| Location | Napier |
| Parties | McLeod v National Hearing Care (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - Respondent claimed applicant’s dismissal justified as could no longer employ applicant after changes imposed by Ministry of Health (“MoH”) – Applicant’s previous employer (“A”) purchased by respondent – Applicant’s original role involved wide range of tasks and included prescribing hearing aids – Applicant had considerable independence but met with qualified audiologist (“T”) weekly - Applicant claimed when respondent became applicant’s employer was given general letter stating applicant’s terms and conditions of work would not change – Respondent claimed discovered some issues with applicant prescribing hearing aids when purchased A as applicant not appropriately qualified but decided issue did not need to be addressed immediately – Respondent became aware MoH considered issuing notice to respondent and other providers – Notice required respondent to ensure that only appropriately qualified employees were prescribing hearing aids – Applicant raised performance concerns with respondent’s managing director (“W”) – W arranged meeting with applicant – Applicant claimed W discussed applicant’s performance and said applicant would be dismissed in month due to MoH changes – W claimed parties meeting not disciplinary and needed to tell applicant MoH notice meant applicant could no longer perform same role – MoH implemented notice - W advised applicant duties would change and asked applicant to consider alternative roles at respondent – Applicant claimed MoH notice did not prevent applicant from performing original role – W claimed confirmed with MoH that respondent’s interpretation of MoH notice requirements correct – MoH told applicant MoH notice did not change previous approach – Applicant claimed MoH confirmed no change to applicant’s role required as applicant already supervised by T – W claimed MoH told applicant was no change as previously qualification requirements less clear, rather than substantively different, and respondent did not have resources to ensure applicant supervised at all times – Respondent claimed if applicant refused to attend meeting to discuss alternatives had no option but to confirm applicant’s dismissal - Authority found was clear from MoH notice that applicant could no longer perform original role without direct and comprehensive supervision – Found applicant not directly supervised by T previously – Found questions about tasks applicant could perform would remain until MoH determined scope of applicant’s role and process could possibly take years – Found level of supervision anticipated by MoH notice would effectively require two people to perform one role – Found dismissal substantively justified – Found unfortunate W discussed applicant’s performance at same meeting informed applicant of dismissal but did not fatally undermine respondent’s decision – Found applicant’s refusal to discuss employment alternatives left respondent with no choice but to dismiss applicant – Dismissal justified - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by improper suspension and respondent’s failure to provide job description - Found not clear applicant was suspended and would not give rise to personal grievance as applicant refused to discuss alternatives – Found no evidence of resulting harm as job requirements after respondent purchased A should have been obvious – No disadvantage - ARREARS OF WAGES – Applicant sought four weeks arrears of wages – Found unclear what applicant actually paid but applicant should have been paid eight weeks wages when dismissed - GOOD FAITH – Applicant claimed respondent breached good faith obligations as misled applicant about future employment prospects – Found respondent went to some length to explain situation and consequences to applicant – Found applicant refused to participate in discussions about alternative employment – Applicant claimed respondent breached employment agreement as refused to attend mediation – Found mediation not mandatory – No breach of good faith - Audiometrist |
| Result | Applications dismissed (unjustified dismissal, unjustified disadvantage and good faith) ; Application granted (arrears of wages) ; Arrears of wages (Quantum to be determined) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s65;ERA s65(2)(a)(ii);ERA s103(1)(b);ERA s103A;ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);Health Practitioners Competence Assurance Act 2003;New Zealand Public Health and Disability Act 2000;New Zealand Public Health and Disability Act 2000 s88 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Wellington_206.pdf [pdf 84 KB] |