| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 282 |
| Hearing date | 19 Oct 2012 |
| Determination date | 19 December 2012 |
| Member | M B Loftus |
| Representation | J Lawrie ; K Hoyle |
| Location | Christchurch |
| Parties | Bain v Oceania Group (NZ) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by final warning and respondent’s refusal to participate in mediation over warning, and unjustifiably dismissed by respondent - Authority found respondent concluded applicant responsible for incident in which resident (“P”) found undressed after reading report from clinical leader and before advising applicant of disciplinary process or giving applicant chance to explain – Found fellow employee present when incident with P occurred not formally interviewed – Found respondent could not conclude applicant wholly responsible for incident with P – Found applicant unjustifiably disadvantaged by final warning – Found mediation between parties desirable but not compulsory under legislation or applicant’s employment agreement – Found applicant not unjustifiably disadvantaged by respondent’s unwillingness to attend mediation – Found respondent unable to rely on final warning in dismissing applicant as warning unjustified – Dismissal unjustified - REMEDIES - No contributory conduct - Respondent to pay applicant $8,799 reimbursement of lost wages - $8,000 compensation appropriate - Health Care Assistant |
| Abstract | Applicant employed by respondent as health care assistant. Applicant claimed unjustifiably disadvantaged by final warning and respondent’s refusal to participate in mediation over warning, and unjustifiably dismissed by respondent. Applicant found disrobed resident (“P”) in communal area. Applicant returned P to room and claimed attempted to dress P but unsuccessful as P agitated. Applicant claimed covered P, informed incoming health care worker (“R”) of matter and completed incident report which stated P redressed. P discovered fallen and undressed on floor of room soon after by other staff. Respondent called disciplinary meeting with result applicant issued final warning. Respondent claimed applicant neglected duty by leaving P in unsafe and undignified state and claimed applicant attempted to cover conduct by being untruthful. Applicant challenged warning and suggested mediation. Respondent rejected mediation which applicant claimed contravened employment agreement (“EA”). In second incident respondent received complaint from R and another employee applicant harassed R when told other staff to stop talking when R entered room, and told R’s flatmate not to trust R. Respondent called disciplinary meeting. Applicant dismissed. Applicant claimed respondent failed to carry out full and fair investigation and failed to interview relevant staff. Applicant claimed respondent’s investigation not impartial as member of investigating team provided prejudicial statement against applicant.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent concluded applicant responsible for P’s state after reading report from Clinical Leader (“C”) and before advising applicant of disciplinary process or giving applicant chance to explain. Respondent discounted applicant’s explanation unable to dress agitated P and relied on C’s claim P very placid although applicant and C described P’s state at different points in time. Fellow employee present during shift in which incident occurred told respondent P agitated prior to incident but not formally interviewed and unable to put to respondent claim told R that P needed immediate assistance. R went to handover meeting causing delay in attending P, admitted applicant probably unaware of meeting and respondent could not conclude applicant wholly responsible for incident with P. Discrepancies between applicant’s explanation immediately following incident and subsequent explanation minor and corrected before disciplinary interview. Applicant unjustifiably disadvantaged by final warning. Mediation between parties desirable but not compulsory under legislation or applicant’s EA. Applicant not unjustifiably disadvantaged by respondent’s unwillingness to attend mediation. Respondent conceded behaviour of applicant towards R during second incident not harassment. Respondent unable to rely on final warning in dismissing applicant as warning unjustified. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $8,799 reimbursement of lost wages. $8,000 compensation appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($8,799.13) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s128(2);ERA s124 |
| Cases Cited | Auckland City Council v Hennessey (1982) ERNZ Sel Cas 4;Van Der Sluis v Health Waikato Ltd [1996] 1 ERNZ 514 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Christchurch_282.pdf [pdf 183 KB] |