| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 116 |
| Hearing date | 16 Aug 2012 |
| Determination date | 28 September 2012 |
| Member | P R Stapp |
| Representation | M Dobson ; B Stewart |
| Location | Palmerston North |
| Parties | Booth v Abbeyfield Palmerston North Inc |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant treated other housekeepers harshly, told resident at respondent to “starve then,” applicant arrived at respondent chairperson’s (“S”) business premises unannounced and delivered tirade and applicant uncooperative towards visitor spraying respondent premises for pest control - Authority found applicant gravely disadvantaged by respondent not giving applicant documents relating to allegations before meeting – Found applicant treated unfairly as S investigating matter and had direct interest in outcome of investigation – Found respondent did not have internal procedure for resident or employee complaints and fair and reasonable employer could be expected to conduct proper inquiry – Found respondent did not conduct proper inquiry into some of allegations – Dismissal unjustified – REMEDIES - No contributory conduct - Reinstatement not practicable and reasonable - $5,000 compensation appropriate - Respondent to pay applicant $7,800 reimbursement of lost wages - Housekeeper |
| Abstract | Applicant employed as housekeeper. Applicant claimed unjustifiably dismissed by respondent. Respondent run by committee of volunteers who administered rest home facility. Respondent claimed applicant treated other housekeepers harshly, told resident at respondent to “starve then,” applicant arrived at respondent chairperson’s (“S”) business premises unannounced and delivered tirade and applicant uncooperative towards visitor spraying respondent premises for pest control. Applicant made complaint to respondent house manager that S had not given applicant fair hearing relating to health and safety issue. Applicant’s complaint became disciplinary process after S became aware of further information about applicant from other people. Applicant invited to attend meeting to discuss complaint and “smooth running” of rest home and applicant told dismissal possible outcome. Respondent aware approach incorrect after received advice on matter and sent applicant second letter setting out issues. Respondent lawyer read out five documents relating to allegations at meeting. Applicant told respondent did not want to be dismissed and some of allegations not serious. Applicant dismissed. Applicant sought reinstatement.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: More likely than not was not break after allegations read out to applicant at meeting to allow applicant to think about response. Applicant had opportunity to address each matter raised at meeting. Documents relating to allegations not provided to applicant before meeting and no reason why documents could not be provided. Applicant gravely disadvantaged by respondent not giving applicant documents before meeting. Absence of any reasoning for decisions that were reached relating to allegations. Applicant treated unfairly as S had direct interest in outcome of investigation S initiated. S procured evidence from housekeepers as housekeepers had not previously laid formal complaint had been treated harshly before their resignation. Issues involving housekeepers had not been investigated properly and housekeepers not made aware of applicant’s response to allegations. Respondent did not have internal procedure for resident or employee complaints and fair and reasonable employer could be expected to conduct proper inquiry. Respondent did not conduct proper inquiry into some of allegations. Respondent completely lost sight of applicant's initial complaint. In circumstances fair and reasonable employer would have excluded S from lead role in investigation. Fair and reasonable employer would have treated pest control matter as performance issue, not serious misconduct. Dismissal unjustified. REMEDIES: No contributory conduct. Reinstatement not practicable and reasonable. $5,000 compensation appropriate. Respondent to pay applicant $7,800 reimbursement of lost wages. |
| Result | Application granted ; Compensation for humiliation etc ($5,000) ; Reimbursement of lost wages ($7,800) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(3);ERA s103A(5);ERA s124 |
| Cases Cited | Zendel Consumer Products Ltd v Henderson [1992] 2 ERNZ 377 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Wellington_116.pdf [pdf 248 KB] |