| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 99 |
| Hearing date | 10 Jul 2012 |
| Determination date | 22 March 2013 |
| Member | K J Anderson |
| Representation | G O'Brien ; G Steele |
| Location | Hamilton |
| Parties | Carroll v Community Living Trust |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent - Two of respondent’s clients lived in flat with assistance of respondent’s caregivers – Client (“A”) had history of violence and preventing pregnant partner (“B”) from engaging services of doctor or midwife – A assaulted B in applicant’s presence causing three fractures (“incident”) – Applicant allowed B to return to flat with A after seeking medical treatment - Respondent claimed no longer had trust and confidence in applicant and applicant had breached employment agreement – Authority found respondent carried out fair and reasonable investigation – Found applicant failed to report incident until following morning and applicant’s email made only cryptic references to incident – Found applicant’s response to incident inexplicable in circumstances – Found irresponsible and professionally careless for applicant to decide B could return to flat with A – Found fair and reasonable employer would have dismissed applicant - Dismissal justified – Behaviour Support Specialist |
| Abstract | Applicant employed as behaviour support specialist by respondent. Applicant claimed unjustifiably dismissed by respondent. Respondent provided residential support services to clients with intellectual disabilities. Two of respondent’s clients lived in flat owned by respondent with assistance of respondent’s caregivers. Applicant began working with couple after concerns raised about client’s (“A”) aggressive behaviour. Respondent concerned A had become domineering with A’s pregnant partner (“B”) and preventing B from engaging services of doctor or midwife. Respondent aware of incidents where A had assaulted B and B’s caregivers and B had sore spine after A put B on ground and sat on B. Applicant visited couple at flat and discussed what would happen after baby born. A told applicant B would have to come home immediately after birth and punched B in nose and mouth causing three fractures (“incident”). Applicant took B to medical centre and then returned couple to flat aware no support person present. Applicant claimed considered informing others of incident but decided taking matter further would be counter-productive as couple were “relating well to each other,” wanted to be home together and further action might cause more tension between couple. Applicant claimed intended to contact couple next day and discuss incident with colleagues following morning. Applicant claimed respondent service coordinator (“J”) and other respondent employee not at offices when attempted to discuss matter. Applicant sent J email stating B had sore nose, B had some bandaging on face, applicant attended medical clinic with couple night before and applicant would discuss matter further with J. J claimed became aware of incident at team meeting, concerned B had returned home after serious assault and other staff not informed of incident. J claimed extremely concerned incident not reported until 18 hours later and email about incident from applicant very brief. Investigation commenced. Applicant invited to attend meeting to discuss respondent’s allegations including that applicant failed to notify on-call manager of incident, left B in potentially harmful environment, failed to notify Police and failed to take into account potential risk to B’s unborn child if B left with A for evening. Respondent claimed no longer had trust and confidence in applicant and applicant had breached employment agreement. Applicant dismissed. Applicant claimed respondent failed to complete reasonable investigation, consider all relevant circumstances or applicant’s employment record.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent raised concerns with applicant, gave applicant reasonable opportunity to respond and genuinely considered applicant’s explanations. Respondent carried out fair and reasonable investigation. Applicant failed to report incident until following morning and applicant’s email made only cryptic references to incident. Most unlikely applicant unaware of appropriate action that should have been taken in response to incident. Authority noted respondent’s code of conduct stated where safety of client was at risk of significant harm or employee had suspicions of physical abuse, these concerns should be reported to employee’s manager immediately. Applicant’s response to incident inexplicable in circumstances, including that A was large, solid man with history of violence and B medically fragile and pregnant. Applicant witnessed assault and was aware of A’s history and returning B to flat was failure to exercise appropriate clinical judgment. Respondent entitled to treat applicant’s response to incident as serious misconduct. Applicant failed to acknowledge that couple had intellectual disabilities and ability to make sound decisions impaired. Irresponsible and professionally careless for applicant to decide B could return to flat with A. Fair and reasonable employer would have dismissed applicant. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3) |
| Cases Cited | New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand [1990] 1 NZILR 35;Secretary for Justice v Dodd (2010) 7 NZELR 578 |
| Number of Pages | 14 |
| PDF File Link: | 2013_NZERA_Auckland_99.pdf [pdf 273 KB] |