| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 271 |
| Hearing date | 11 Dec 2012 - 13 Dec 2012 (2 days) |
| Determination date | 28 June 2013 |
| Member | K J Anderson |
| Representation | S Austin ; G Bingham |
| Location | Whakatane |
| Parties | Johnson v Bay of Plenty District Health Board |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by warnings and harassment while on sick leave – Communication issues raised with applicant – Issues continued following performance appraisal – Internal mediation between applicant and team leader – Applicant and team leader participated in employee assistance programme – Applicant placed on performance management plan (“PMP”) – Applicant informed respondent felt unsafe in office environment – Applicant moved to new work station – Complaints made about applicant including rudeness, insistence office be moved to suit applicant’s needs and inappropriate tone when issuing instructions – Complaint applicant made other employees feel bullied and harassed – Whether applicant failed to maintain acceptable level of work – Applicant warned for inappropriate and disruptive behaviour – PMP concluded – Whether PMP part of disciplinary process – Respondent found applicant failed to achieve all PMP areas – Second written warning issued – Respondent sought to continue second written warning – Applicant invited to participate in phone meeting – Applicant informed non-participation could result in disciplinary action – Applicant declined to participate in phone meeting – PMP continued – Applicant declared medically unfit for work – Applicant received invitations to further meetings while on sick leave – Meetings subsequently cancelled – Whether respondent aware applicant away on scheduled meeting dates – Applicant received six telephone calls from respondent while on sick leave – COMPLIANCE ORDER – Applicant sought compliance with parties’ settlement agreement – Whether respondent failed to meet with applicant, evaluate trial and decide actions for future – GOOD FAITH – Applicant claimed respondent breached duty of good faith by failing to provide access to all relevant information – Whether respondent subsequently intended to dismiss applicant – Scheduler |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Applicant not provided with minutes of interviews with other employees. Applicant could have put forward meritorious argument first written warning unjustified. First written warning unjustified. Applicant not made aware disciplinary action contemplated in respect of PMP. Second written warning unjustified. Telephone calls to applicant not unjustified. Sending written communications while applicant on sick leave not fair and reasonable. Applicant entitled to be left undisturbed regarding performance issues until medically fit. Applicant unjustifiably disadvantaged by warnings and respondent’s failure to allow applicant to recuperate. REMEDIES: No contributory conduct. $6,000 compensation appropriate.;COMPLIANCE ORDER: Parties met but settlement agreement envisaged mutual evaluation of trial and that applicant would have input into evaluation and decision about future actions. Not possible to order compliance due to passage of time. Any breach of settlement agreement technical and inadvertent. Application dismissed.;GOOD FAITH: Authority not prepared to open old wounds. Parties working towards constructive outcome. Applicant less than active and constructive. No breach of good faith. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($6,000) ; Applications dismissed (compliance order)(good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(c);ERA s103(1);ERA s103(1)(b);ERA s103A;ERA s103A(2);ERA s103A(3) |
| Cases Cited | Air New Zealand v Sutherland [1993] 2 ERNZ 10;Alliance Freezing Company (Southland) Ltd v NZ Amalgamated Engineering etc IUOW (1989) ERNZ Sel CAS 575 ; [1990] 1 NZLR 533;Trotter v Telecom Corp of New Zealand Ltd [1993] 2 ERNZ 659;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 26 |
| PDF File Link: | 2013_NZERA_Auckland_271.pdf [pdf 336 KB] |