| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 380 |
| Hearing date | 12 Jul 2012 |
| Determination date | 25 October 2012 |
| Member | K J Anderson |
| Representation | S Sharma ; M Broadbelt |
| Location | Auckland |
| Parties | Naicker v Terranova Homes & Care Ltd t/a West Harbour Gardens Hospital |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant’s conduct relating to two of respondent’s residents amounted to serious misconduct – Authority satisfied applicant fully aware of basis of allegations and given copy of statements relating to allegations prior to meeting - Found applicant failed to exercise high standard of care towards two residents required of someone in applicant’s position - Found respondent entitled to treat applicant’s actions towards two residents as serious misconduct - Found fair and reasonable employer could have dismissed applicant - Dismissal justified - Caregiver |
| Abstract | Applicant employed as caregiver. Applicant claimed unjustifiably dismissed by respondent. Respondent manager (“A”) claimed issues with applicant absent from work without respondent’s approval. Applicant’s request for two weeks’ leave approved by respondent. Applicant requested further three days’ leave and respondent declined applicant’s request for two of three days due to short notice. Respondent administrator confirmed with applicant two days’ leave not approved but applicant did not attend work on days for which leave declined. Respondent requested applicant attend meeting. Respondent requested applicant provide medical certificate. Applicant received final written warning. A claimed discovered respondent resident (“B”) wished to make complaint about applicant’s actions. B physically vulnerable but mentally alert. B claimed applicant told B would be leaving B in bed for morning and, when B insisted on getting up, applicant placed B in medical chair unwashed, unshaven and without underwear. Respondent nurse claimed later found B in distressed state. A received further complaint about applicant from respondent caregiver (“S”) that applicant had not used equipment to move paralysed resident (“G”) as required, G had slipped while being moved and S required to find another staff member to assist while applicant held G. Respondent suspended, respondent advised applicant of allegations in writing and requested applicant’s response. N arrived at workplace to speak to A. A claimed N became abusive and called A “racist bastard” and banged on A’s window with force. Parties disputed whether N arrived with applicant at second meeting as support person. Respondent claimed applicant denied allegations at meeting. Applicant dismissed. Applicant claimed not given copy of statements relating to allegations.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant did not have support person at second meeting. Authority satisfied applicant fully aware of basis of allegations and given copy of statements relating to allegations prior to meeting. No evidence applicant took into account written warning when decided to dismiss applicant although respondent entitled to take warning into account. Applicant failed to exercise high standard of care towards B and G required of someone in applicant’s position. Respondent entitled to treat applicant’s actions towards B and G as serious misconduct. Fair and reasonable employer could have dismissed applicant. Dismissal justified. |
| Result | Application granted ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);Legal Services Act 2011 s45(2) |
| Cases Cited | W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_380.pdf [pdf 138 KB] |