| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 228 |
| Hearing date | 9 May 2012 |
| Determination date | 05 July 2012 |
| Member | J Crichton |
| Representation | C Blake; M O'Neill |
| Location | Hamilton |
| Parties | Jarvis-Hall v Waikato Community Hospice Trust t/a Hospice Waikato |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent adopted stop/start process that caused applicant to conclude respondent’s concerns resolved – Found dismissing applicant following mediation without any further attempt to engage with applicant or resolve issues unjust – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $20,000 reimbursement of lost wages – $13,000 compensation appropriate – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of holiday pay paid to applicant in excess of applicant’s entitlement – Found respondent’s payroll system manipulated by incorrect information supplied by applicant – Applicant to pay respondent $7,123 holiday pay paid to applicant in excess of applicant’s entitlement – Clinical nurse manager |
| Abstract | Applicant employed by respondent as clinical nurse manager. Applicant claimed unjustifiably dismissed by respondent. Respondent developed concerns about applicant’s performance and initiated mentoring by respondent’s chief executive (“B”). Applicant claimed understood engagement with B part of normal management exercise and not given any indication respondent had concerns about applicant’s performance. B claimed spoke to applicant about possible performance problems but applicant always had plausible answer. Over following year respondent became concerned about a number of matters, including applicant’s hiring of staff member without B’s knowledge or consent, and respondent sought meeting with applicant. Respondent’s request applicant attend meeting gave applicant no indication meeting had disciplinary or performance management focus. One month later applicant received letter clearly indicating respondent had issues with applicant’s performance. Applicant claimed left subsequent meetings with understanding issue of applicant hiring staff without B’s consent resolved. Respondent took no further action until one month later when respondent wrote to applicant alleging applicant exceeded authority by hiring staff without B’s consent and requiring applicant to submit to remedial coaching plan. Applicant replied expressing strong criticisms of respondent’s process. Respondent took no further action until one month later when applicant on holiday and requested by respondent to go to mediation. After mediation unsuccessful applicant dismissed. Respondent sought recovery of holiday pay paid to applicant in excess of applicant’s entitlement. Applicant claimed did not know taking excessive annual leave.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent not entitled to rely on initial performance concerns as respondent either accepted applicant’s explanations or should have pursued matters at time. Respondent initiated disciplinary process by sending applicant letter clearly indicating respondent had issues with applicant’s performance. Respondent adopted stop/start process that caused applicant to conclude respondent’s concerns resolved. Applicant did all reasonably possible to engage with respondent given stop/start nature of process and applicant had no proper opportunity to respond to respondent’s concerns. Dismissing applicant following mediation while remedial coaching plan and disciplinary investigation still in progress without any further attempt to engage with applicant or resolve issues unjust. Basis of dismissal not clear from dismissal letter and no finding of serious misconduct possible because respondent not provided with explanation by applicant. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $20,000 reimbursement of lost wages. $13,000 compensation appropriate.;COUNTERCLAIM – RECOVERY OF MONIES: Respondent’s payroll system manipulated by incorrect information supplied by applicant in only submitting one of two forms required. Applicant applied for leave entitled to correctly and suggestion applicant did not realise taking roughly two-thirds more leave than entitled to strained credibility to maximum. Applicant to pay respondent $7,123 holiday pay paid to applicant in excess of applicant’s entitlement. |
| Result | Applications granted; Reimbursement of lost wages ($20,000); Compensation for humiliation etc ($13,000); Recovery of monies ($7,123.29); Disbursements in favour of applicant ($71.56)(filing fee); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Avon County Council v Howlett [1983] 1 WLR 605;Foai v Air New Zealand Ltd (2012) 9 NZELR 448;Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2008] ERNZ 155; [2008] 3 NZLR 193 |
| Number of Pages | 18 |
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