| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 37 |
| Hearing date | 14 Feb 2012 - 15 Feb 2012 (2 days) |
| Determination date | 05 April 2012 |
| Member | G J Wood |
| Representation | T Oldfield ; S Leftley |
| Location | New Plymouth |
| Parties | Naidu v Radius Residential Care Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – UNJUSTIFIED DISADVANTAGE – Discrimination – Applicant claimed unjustifiably dismissed by respondent and respondent discriminated against applicant because of applicant’s involvement with union – Respondent operated rest home - Order prohibiting publication of respondent residents’ names or other identifying information – Applicant involved in union’s claim over respondent’s contracting out of laundry work – Claim settled resulting in reduced staff causing resentment between employees and communication breakdown between applicant and respondent manager (“K”) – K received complaint from resident’s (“X”) family member (“Y”) about lack of care and night shift employees sleeping during working hours – Y claimed no-one had cared for X for hours and discovered applicant sleeping – K received two further complaints from X’s family that applicant seen asleep during night shift with lights off, inadequate checks of X and when applicant questioned about not answering bell applicant shrugged shoulders and did not respond – Employee (“Z”) claimed when started morning shift had seen applicant sleeping at workplace – Investigation commenced and applicant sent letter outlining allegations – At meeting applicant claimed X’s family members obstructive and harassed applicant but did not tell K as K rude to applicant - Respondent accepted applicant’s explanation that Z mistaken and had not seen applicant sleeping – Respondent reviewed video footage – Footage showed minimal activity during period Y claimed saw applicant sleeping – Respondent concluded applicant sleeping during night shift – Respondent claimed no evidence applicant harassed by X’s family – X’s file showed X received treatment on night Y claimed applicant sleeping – Employee (“A”) claimed had seen applicant sleeping on night shift several times – Authority found applicant’s claim always busy working during night shift not credible – Parties had second meeting - Respondent questioned applicant’s failure to write up incident report about alleged harassment from X’s family - Applicant’s representative (“J”) requested copy of footage – Parties disputed how long J had to respond after viewed footage – Respondent concluded applicant slept at workplace regularly – Applicant dismissed – Found respondent’s investigation insufficient – Found applicant not given opportunity to view and respond to footage – Found timeframe respondent set for J to respond after viewed footage unreasonable – Found respondent should have shown applicant X’s file showing allegation X had not been cared for during night shift incorrect – Found respondent failed to provide applicant with detail of all allegations – Found respondent’s investigation flawed - Dismissal unjustified - Found K not involved in union negotiations and applicant’s union involvement did not influence applicant’s dismissal – No unjustified disadvantage – REMEDIES – 100 per cent contributory conduct - Found likely applicant was sleeping during night shift – Found inequitable to aware applicant remedies and reinstatement not reasonable or practicable - Duty Leader Caregiver |
| Result | Application granted ; Contributory conduct (100%) ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(4);ERA s103A(5);ERA s104;ERA s107;ERA s119 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEMPC 160;Managh t/a Managh & Associates & Caf� Down Under Ltd v Wallington & Crawford [1998] 2 ERNZ 337 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Wellington_37.pdf [pdf 89 KB] |