| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 53 |
| Hearing date | 25 - 26 Oct 2012 |
| Determination date | 13 March 2013 |
| Member | D Appleton |
| Representation | A Sharma ; J Goldstein, L Ryder |
| Location | Nelson |
| Parties | Hoff v The Wood Lifecase (2007) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for conduct that may have brought respondent into disrepute – Authority found respondent’s failure to allow applicant opportunity to have support person present during initial interview minor flaw not resulting in unfairness to applicant – Found general manager’s failure to interview gardener not minor – Found applicant not prevented from talking about stress applicant under or explaining actions during disciplinary meeting – Found respondent’s failure to provide copy of house rules to applicant with allegation letter not minor omission – Found specific allegation applicant disobeyed instruction not to go into unit not put to applicant clearly – Found fair and reasonable employer could conclude applicant present in unit for inappropriate reason and conduct could have damaged respondent’s reputation or image – Dismissal unjustified – Found reduction in remedies for serious misconduct discovered after applicant’s dismissal appropriate but not necessary to reach conclusion on whether applicant and co-worker conducting extra-marital affair – REMEDIES – 50 percent contributory conduct – Respondent to pay applicant $3,778 reimbursement of lost wages – $2,500 compensation appropriate – Senior caregiver |
| Abstract | Applicant employed by respondent as senior caregiver. Applicant claimed unjustifiably dismissed by respondent. After applicant’s shift, applicant gave gardener (“G”) access to unit still containing belongings of deceased resident. Applicant claimed allowing G to water plants on balcony. Receptionist brought family of prospective resident to unit. Receptionist saw G’s glasses and applicant’s keys on bed. Receptionist claimed G looked startled and walked onto balcony to water plants. Visitor twice remarked someone hiding behind bathroom door but applicant did not emerge from behind door. G interviewed by manager (“B”). After B conducted initial interview with applicant, respondent wrote to applicant initiating disciplinary process. Respondent alleged applicant hiding behind bathroom door indicated something inappropriate about applicant’s behaviour, applicant not authorised to use key to access unit and applicant’s actions had potential to bring respondent into disrepute or damage respondent’s reputation or image. At disciplinary meeting applicant denied told not to unlock doors, claimed didn’t know why G in unit or why G’s glasses there, and applicant stressed after death of applicant’s mother and several residents. Applicant claimed only talking with G. Respondent claimed unacceptable for applicant to be in unoccupied unit with male employee with door closed and keys, including drug cabinet key, left on bed while applicant hid. Respondent claimed applicant’s suspicious behaviour suggested something inappropriate might have happened or be about to happen and may have brought respondent into disrepute or otherwise damaged respondent’s image in breach of house rules. Applicant dismissed. Respondent claimed, if applicant unjustifiably dismissed, serious misconduct discovered after applicant’s dismissal meant remedies should be reduced.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of identity of residents at respondent and G. Respondent’s failure to allow applicant opportunity to have support person present during initial interview minor flaw not resulting in unfairness to applicant. Respondent’s conclusion something inappropriate had happened or about to happen not based on rumours alluded to by B but not contained in allegation letter. Applicant warned could be dismissed and fact applicant not suspended before disciplinary meeting not significant. While nothing said by G during disciplinary interview would have legitimately led general manager (“W”) to different conclusion, W’s failure to interview G before deciding to dismiss applicant not minor. Applicant not prevented from talking about stress applicant under or explaining actions during disciplinary meeting. Respondent’s failure to provide copy of house rules to applicant with allegation letter did not prejudice applicant but failure not minor as house rules formed basis of standards against which applicant judged. Specific allegation applicant disobeyed instruction not to go into unit not put to applicant during disciplinary meeting and allegation in previous letter not sufficiently clear. Respondent’s house rules did not require respondent to be actually brought into disrepute or reputation to be actually damaged. Respondent’s concerns might be brought into disrepute referred to likely reaction of visitors to applicant’s furtive conduct. Fair and reasonable employer could conclude applicant present in unit for inappropriate reason and conduct could have damaged respondent’s reputation or image. Dismissal unjustified. Likely applicant and G kissing and cuddling at work but not necessary to reach conclusion on whether applicant and G conducting extramarital affair. Applicant’s conduct in setting of elderly care home not professional, could damage respondent’s reputation and amounted to serious misconduct although not discovered until after applicant’s dismissal. Reduction in remedies appropriate. REMEDIES: Applicant accessed unit contrary to instruction after shift and left keys to drug cabinet unattended. Applicant’s conduct raised serious and legitimate suspicions about motives for being in unit and likely to raise concerns in visitors’ minds about professionalism of respondent’s staff. 50 percent contributory conduct. Respondent to pay applicant $3,778 reimbursement of lost wages. $2,500 compensation appropriate. |
| Result | Application granted ; Contributory conduct (50%) ; Reimbursement of lost wages ($3,778.13) ; Compensation for humiliation etc ($2,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA s103A(3)(b);ERA s103A(5);ERA s124;ERA s128(2);ERA s128(3) |
| Cases Cited | Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2008] ERNZ 155 ; [2008] 3 NZLR 193 |
| Number of Pages | 20 |
| PDF File Link: | 2013_NZERA_Christchurch_53.pdf [pdf 289 KB] |