| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 120 |
| Hearing date | 27 Jun 2012 |
| Determination date | 01 October 2012 |
| Member | P R Stapp |
| Representation | V Eades ; D Mitchell |
| Location | Wanganui |
| Parties | May v Fordell Pre-School Inc |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Authority found applicant not suspended – Found applicant’s unjustifiable disadvantage claims raised outside 90 day limit – No unjustified disadvantage – Found respondent failed to contact complainant (“M”) for comment on applicant’s version of first incident – Found respondent should have given relief teacher’s account of first incident weight rather than relying on M’s version – Found respondent should have given more weight to fact that head teacher had not raised matter for at least seven weeks – Found respondent entitled to conclude something happened during first incident but applicant’s conduct not sufficiently serious to justify dismissal – Dismissal unjustified – REMEDIES – 25 per cent contributory conduct – Respondent to pay applicant $5,850 reimbursement of lost wages – $4,500 compensation appropriate – Preschool teacher |
| Abstract | Applicant employed by respondent as preschool teacher. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Complainant (“M”) claimed applicant grabbed child’s upper arm firmly, lifted child off ground and held child under arm while talking harshly to child (“first incident”). Incident reported to head teacher (“B”) but no action taken. Seven weeks later M reported incident to pre-school chairperson (“P”). Three days later B informed P had witnessed second incident week earlier. B claimed applicant grabbed child’s arm roughly and pulled child down causing child to cry and hold arm. At meeting applicant read prepared statement and respondent confirmed first incident had been witnessed by relief teacher (“D”) who saw applicant lift child with two hands. Respondent claimed D supported claim applicant rough and used harsh words. Following meeting P claimed contacted M and B to confirm stood by complaints. M denied being contacted. Applicant informed P student teacher present during first incident. P claimed student teacher said unable to recall incident and therefore excluded as witness. Applicant claimed suspended by respondent. At subsequent meeting applicant denied mistreating children. Respondent concluded incidents had occurred and involved inappropriate treatment of children. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant agreed to take paid discretionary leave and did not complain about alleged suspension at time. No suspension. Suspension claim and other unjustified disadvantage claims raised outside 90 day limit. No unjustified disadvantage. Respondent failed to contact M for comment on applicant’s version of first incident and at most only contacted M to ask if M stood by complaint. D’s account of first incident different to M’s as D indicated applicant picked child up with two arms rather than one, although D’s account supported claim applicant spoke to child in harsh tone. Respondent should have given D’s account weight rather than relying on M’s version. Respondent entitled to investigate first incident but should have given more weight to fact that B had not raised matter for at least seven weeks while applicant remained at work. Given conflict in evidence over first incident respondent should have taken student teacher’s claim did not see anything into account. Respondent entitled to conclude something happened during first incident but applicant’s conduct not sufficiently serious to justify dismissal. Respondent’s conclusion applicant could not be trusted not to repeat actions raised for first time in dismissal letter and not put to applicant. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. Respondent to pay applicant $5,850 reimbursement of lost wages. $4,500 compensation appropriate. |
| Result | Application granted (unjustified dismissal); Contributory conduct (25%); Reimbursement of lost wages ($5,850); Compensation for humiliation etc ($4,500); Application dismissed (unjustified disadvantage); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Wellington_120.pdf [pdf 163 KB] |