| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 71 |
| Hearing date | 27 - 29 Nov 2012, 30 - 31 Jan 2013 |
| Determination date | 26 April 2013 |
| Member | C Hickey |
| Representation | N Ironside ; J Goldstein, L Ryder |
| Location | Nelson |
| Parties | Vollmer v The Wood Life Care (2007) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by suspension and being issued with trespass notice – Applicant claimed unjustifiably dismissed by respondent – Request for sick leave in advance declined – Whether applicant abusive, intimidating and unprofessional towards manager – Whether applicant failed to follow lawful instruction by failing to record and report all non-medicated infections – Whether applicant failed to follow lawful instruction by refusing to leave facility after being suspended – Police called – Whether applicant defiant, hostile and angry – Whether concerns for patient safety because of applicant’s abusive behaviour – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith – Appointment of permanent staff member in applicant’s role while applicant reinstated in interim – Charge Nurse |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant not told why considered inappropriate for applicant to be at work pending disciplinary meeting. Applicant not given opportunity to respond to concerns. Applicant unjustifiably disadvantaged by suspension. Trespass notice issued when no investigation complete and no opportunity for applicant to explain. Respondent’s manager issued trespass notice in capacity as occupier of respondent’s premises. Unjustified suspension meant applicant had honest and correct belief applicant on respondent’s premises lawfully. Applicant unjustifiably disadvantaged by being issued with trespass notice. Applicant’s refusal to leave respondent’s premises not serious misconduct as instruction not lawful. Applicant’s emotional behaviour after Police involvement understandable. Applicant bad-mannered and inappropriate towards manager but conduct did not amount to misconduct under House Rules and not necessarily unprofessional. Applicant’s behaviour could be regarded as misconduct but not serious misconduct. Applicant uncertain about how and when new policy for documenting non-medicated infections would occur and no specific and clear instruction given to applicant to commence recording all non-medicated infections. Applicant’s failure to record non-medicated infections performance issue but not failure to carry out proper work instruction. Respondent failed to follow own House Rules with respect to inadequate performance. Applicant’s length of service and employment record not considered by respondent. Decision-maker did not hear from applicant in person and did not interview witnesses personally. Respondent’s manager not in position to act objectively in deciding whether applicant refused to leave respondent’s premises when manager made decision to suspend applicant and call Police. Issue of trespass notice suggested some predetermination. Respondent failed to consider professional consequences of applicant being dismissed. REMEDIES: Depth and mutual feelings of distrust between applicant and manager meant reinstatement not practicable and reasonable. 25 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Compensation for loss of KiwiSaver benefit appropriate, quantum to be determined. $9,375 compensation appropriate.;GOOD FAITH: Appointment of new employee in applicant’s role not breach of good faith. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Contributory conduct (25%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for loss of KiwiSaver benefit (quantum to be determined) ; Compensation for humiliation etc ($9,375) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(4);ERA s103A(5);ERA s124;ERA s127(2);ERA s128;ERA s128(2);ERA s128(3);Trespass Act 1980;Trespass Act 1980 s2;Trespass Act 1980 s3;Trespass Act 1980 s4 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Assoc of Staff in Tertiary Education v Northland Polytechnic Council [1992] 2 ERNZ 943;Birss v Secretary for Justice [1984] 1 NZLR 513;Gazeley v Oceania Group (NZ) Ltd (2012) 9 NZELR 340;Jinkinson v Oceana Gold (NZ) Ltd (2011) 9 NZELC 93,655;Lewis v Howick College Board of Trustees (2010) 7 NZELR 539;Sam’s Fukuyama Food Services Ltd v Zhang [2011] ERNZ 482;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178;Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of Justice [1993] 2 ERNZ 546;Trotter v Telecom Corp of New Zealand Ltd [1993] 2 ERNZ 659;Villegas v Visypak (NZ) Ltd (2010) 8 NZELR 362 |
| Number of Pages | 48 |
| PDF File Link: | 2013_NZERA_Christchurch_71.pdf [pdf 447 KB] |