| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 261 |
| Hearing date | 15 May 2012 - 16 Jun 2012 (5 days) |
| Determination date | 30 November 2012 |
| Member | A Dumbleton |
| Representation | A Sharma ; K Dunn, A Smith |
| Location | Christchurch |
| Parties | Gazeley v Oceania Group (NZ) Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by suspension – Authority found applicant raised unjustified disadvantage grievance within 90 day period – Respondent operated residential care services facility (“W”) - Found appropriate applicant remained offsite while respondent investigated matters potentially affecting security of W’s staff and residents – Found in circumstances consultation with applicant or allowing applicant to have representation prior to suspension not required – Found no unjustified disadvantage - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Found respondent’s inquiry following applicant’s suspension fairly and reasonably conducted – Found fair and reasonable employer could have concluded applicant’s conduct caused loss of trust and confidence in applicant – Found applicant may not have intended to harm resident but acted improperly when talked about restraining resident – Found respondent reasonably concluded applicant should not have joked about food provided by W or joked with W’s staff if W’s residents or staff might reasonably have been offended by comments - Dismissal justified – PENALTY – GOOD FAITH – Applicant claimed respondent breached good faith obligations towards applicant – Found penalty not appropriate – No penalty – Facility Manager |
| Abstract | Applicant employed by respondent as facility manager. Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent. Applicant claimed respondent breached good faith obligations towards applicant. Respondent claimed applicant had not raised unjustified disadvantage grievance within 90 days. Respondent operated residential care services facility (“W”). W had contract with local district health board (“DHB”) to provide residential care services and DHB able to audit W’s services at any time without notice. Applicant most senior employee at W with overall responsibility for operational issues. DHB’s audit at W raised serious concerns and DHB advised respondent intended to appoint temporary manager and involve Police. Applicant suspended when returned from leave. At time of suspension applicant had warning on file relating to applicant restraining resident to force resident to take medication (“first incident”). Applicant claimed not consulted before suspended and decision to suspend predetermined. Respondent manager (“S”) claimed felt pressured by DHB to suspend applicant but applicant’s suspension not predetermined. Respondent gave applicant letter with comments from W’s staff and residents including details of first incident, that applicant had shaken resident, applicant had not followed respondent’s complaint process and residents feared retaliation from applicant if raised concerns. Applicant denied all allegations. Respondent claimed applicant told resident if resident did not stay seated in chair resident would be physically restrained from moving (“second incident”). Respondent concluded applicant should be dismissed on basis of second incident, applicant’s failure to adequately supervise W’s clinical services and applicant’s rude and derogatory remarks to W’s staff and residents. Applicant agreed had called out “jellimeat for tea” when residents’ meals ready. Applicant claimed did not review residents’ care plans as responsibility of another manager. Applicant claimed if grievance successful any award of reimbursement of lost remuneration should be increased to reflect respondent’s failure to review applicant’s performance annually.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISADVANTAGE: Authority ordered non-publication of names W’s residents. Applicant raised unjustified disadvantage grievance within 90 day period. Applicant aware audit initiated by DHB and temporary manager appointed. No real possibility when applicant returned to work could have persuaded S should not be suspended. Performance of applicant’s employment agreement with respondent should be viewed in context of respondent’s contract with DHB. Appropriate applicant remained offsite while respondent investigated matters potentially affecting security of W’s staff and residents. In circumstances consultation with applicant or allowing applicant to have representation prior to suspension not required. No unjustified disadvantage.;UNJUSTIFIED DISMISSAL: Respondent’s inquiry following applicant’s suspension fairly and reasonably conducted. Although applicant not party to respondent’s contract with DHB, applicant well aware of central part applicant had in ensuring respondent properly performed contract with DHB. Respondent reasonably concluded applicant had failed to maintain adequate clinical oversight. Fair and reasonable employer could have concluded applicant’s conduct caused loss of trust and confidence in applicant. Respondent’s concerns about second incident not overstated. Applicant may not have intended to harm resident but acted improperly when talked about restraining resident and comments heard by resident. Respondent reasonably concluded applicant should not have joked about food provided by W or joked with W’s staff if W’s residents or staff might reasonably have been offended by comments. Dismissal justified.;PENALTY – GOOD FAITH: Authority noted even if applicant had been successful, making adjustment to applicant’s award of lost remuneration expressly prohibited by s161(2)(b) Employment Relations Act 2000. Respondent breached employment agreement as did not review applicant’s performance annually but no remedy sought by applicant. No penalty. Although respondent arguably misled applicant as to whether was consultation before dismissal, respondent’s conduct not intended to undermine employment relationship. No penalty. Applicant’s claim respondent had breached good faith obligations by failing to disclose restraint policy, after applicant issued with warning about applicant’s breach of policy, and email relating to applicant’s performance did not involve information that had adverse effect on continuation of applicant’s employment. No penalty. |
| Result | Application granted (raising personal grievance) ; Applications dismissed (unjustified disadvantage, unjustified dismissal and penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s4(1A)(c);ERA s103A;ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s161(2)(b);ERA Second Schedule cl10;New Zealand Public Health and Disability Act 2000;Social Security Act 1964 |
| Cases Cited | Arthur D Riley & Co Ltd v Wood [2008] ERNZ 462;Gazeley v Oceania Group (NZ) Ltd [2011] NZERA Christchurch 180;Gazeley v Oceania Group (NZ) Ltd [2012] NZEmpC 8;Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Christchurch_261.pdf [pdf 310 KB] |