| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 337 |
| Hearing date | 2 Aug 2012 |
| Determination date | 27 September 2012 |
| Member | R Larmer |
| Representation | T Oldfield ; P McBride |
| Location | Auckland |
| Parties | Ritchie v Idea Services Ltd (In statutory management) |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s actions – Applicant assaulted by resident at respondent site - Authority found respondent had sufficient information to identify resident’s behaviour as potential hazard but did not provide applicant with appropriate training or take remedial action – Found respondent did not breach respondent incident policy but failed to fulfil health and safety obligations - Found applicant unjustifiably disadvantaged by respondent’s failure to provide safe workplace – Found respondent did not breach good faith obligations towards applicant – Found respondent conducted full and fair investigation – Found fair and reasonable employer would have concluded applicant’s actions amounted to serious misconduct - Dismissal justified – REMEDIES - No contributory conduct - $1,000 compensation appropriate - Community service worker |
| Abstract | Applicant employed by respondent as community service worker. Applicant claimed unjustifiably dismissed and disadvantaged by respondent’s actions. Applicant provided care for respondent’s service users with intellectual and other disabilities including overnight duties at respondent residence (“E”). Applicant claimed given insufficient information about resident (“A”) behaviour before commenced work at E. Applicant drove residents home after outing. A hit resident (“D”), verbally abused other resident (“B”) and hit applicant when intervened breaking applicant’s glasses (“incident”). Respondent asked applicant to file incident report. Applicant approached media and arranged to meet reporter at E. Reporter spoke to applicant, B and other resident (“C”) and took photo of C. Reporter’s article included personal information about residents, incident, alleged response of respondent to incident and applicant’s comments about A. Applicant claimed B and C gave informed consent to article and took action as respondent failed to respond to incident report. Investigation commenced. Respondent claimed applicant had disclosed residents’ personal information and allowed media to question and photograph residents without authorisation. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non-publication of names or information identifying respondent’s service users or residence. Respondent did not fail to provide respondent with adequate support after incident and applicant declined respondent’s offer to move applicant from E. In circumstances not breach of respondent’s policy that respondent did not provide incident report outcome until two weeks later. Respondent’s failure to have debriefing meeting with applicant due to applicant taking sick leave and later refusal to have contact with respondent. Respondent did not breach respondent incident policy. Respondent had sufficient information to identify A’s behaviour as potential hazard but did not provide applicant with appropriate training before began at E or take remedial action. Respondent did not fulfil health and safety obligations. Applicant unjustifiably disadvantaged by respondent’s failure to provide safe workplace. B and C did not give informed consent to interview. Respondent did not breach good faith obligations towards applicant. Respondent conducted full and fair investigation into applicant’s conduct. Fair and reasonable employer would have concluded applicant’s actions amounted to serious misconduct. Dismissal justified. REMEDIES: No contributory conduct. $1,000 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($1,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(1B);ERA s4(1C);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s124;Health and Safety in Employment Act 1992 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Auckland_337.pdf [pdf 277 KB] |