| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 249 |
| Hearing date | 31 Oct 012 |
| Determination date | 13 November 2012 |
| Member | C Hickey |
| Representation | N Ironside ; L Ryder, J Goldstein |
| Location | Nelson |
| Parties | Vollmer v The Wood Life Care (2007) Ltd |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent – Authority found arguable case applicant’s suspension unjustified, issue of trespass notice was in nature of dismissal and also suggested respondent’s ability to fairly conduct investigation compromised and arguable applicant might be reinstated - Found in circumstances monetary compensation unlikely to be sufficient to fully compensate applicant until matter determined – Found reinstatement on ‘garden leave’ basis only not sufficient – Found balance of convenience favoured applicant being reinstated in interim – Found overall justice required applicant be reinstated in interim but respondent had option to reinstate applicant on ‘garden leave’ until substantive matter determined – Application for interim reinstatement granted - Infection Control Coordinator |
| Abstract | Applicant employed as infection control coordinator. Applicant sought interim reinstatement. Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent. Respondent requested applicant attend meeting to discuss allegations applicant abusive and intimidating towards respondent facility manager (“B”), failed to follow policy and lawful instructions and applicant's behaviour towards respondent’s employees inappropriate and unprofessional. Applicant ill on initial disciplinary hearing date and respondent rescheduled meeting. Respondent advised applicant would remain on paid leave until attended meeting. Applicant did not agree to paid leave and told respondent would attend work as usual next day. Applicant suspended when returned to work next day and asked to leave workplace. Respondent called Police and applicant received trespass notice preventing applicant from going to workplace for next two years. Respondent told applicant would not continue with allegation applicant’s behaviour towards respondent’s employees inappropriate and unprofessional but had added further allegation applicant had failed to follow lawful instruction to leave workplace after suspended. Respondent concluded three allegations proven, amounted to serious misconduct and asked applicant for comments. Applicant dismissed. Applicant claimed were numerous procedural defects in suspension process and before applicant dismissed. Respondent opposed reinstatement and claimed had lost trust and confidence in applicant. Applicant claimed age, senior position and dismissal for serious misconduct meant applicant would find obtaining comparable position very difficult. Respondent claimed monetary order adequate alternative remedy, not appropriate for Authority to order interim reinstatement when trespass order in place and applicant likely to find alternative employment in same area.;AUTHORITY FOUND –;INJUNCTION: Arguable case applicant’s suspension unjustified on basis not adequately consulted before decision made. Arguable case issue of trespass notice was in nature of dismissal and also suggested respondent’s ability to fairly conduct investigation compromised. Applicant had arguable case might be reinstated. Trespass order not relevant consideration as within respondent’s power to lift trespass order if interim reinstatement ordered. Respondent charge nurse and respondent nurse educator did not give evidence of difficulties working with applicant if applicant reinstated. In circumstances monetary compensation unlikely to be sufficient to fully compensate applicant until matter determined and reinstatement on ‘garden leave’ basis only not sufficient. Balance of convenience favoured applicant being reinstated in interim. No real evidence B unable to manage applicant’s reintegration into workplace. Relevant allegations did not affect applicant’s interactions with residents of respondent. Respondent had not proved applicant’s undertaking as to damages could not be relied on. Overall justice required applicant be reinstated in interim but respondent had option to reinstate applicant on ‘garden leave’ until substantive matter determined. Application for interim reinstatement granted. |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s103A(5);ERA s125;ERA s127;ERA s127(2) |
| Cases Cited | McKean v Ports of Auckland [2011] NZEmpC 128;Cliff v Air New Zealand Ltd [2005] ERNZ 1;Gazeley v Oceania Group (NZ) Ltd (2012) 9 NZELR 340;Orme v Eagle Technology Group Ltd unreported, Colgan CJ, 15 June 1995, WEC40/95;Pacific Blue Employment & Crewing Ltd v B [2010] NZEmpC 112 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Christchurch_249.pdf [pdf 264 KB] |