| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 330 |
| Hearing date | 16 Jul 2013 |
| Determination date | 01 August 2013 |
| Member | E Robinson |
| Representation | P Plessis ; A Rekke |
| Location | Tauranga |
| Parties | Plessis v Kidicorp Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Dismissal Unjustified |
| Abstract | Applicant (Ms Plessis) employed by respondent (Kidicorp Ltd) as early childhood teacher (Education and Training sector). Applicant claimed unjustifiably dismissed by respondent. Applicant’s co-worker (“R”) heard applicant talk sternly to child. Child cried and went to R. R alleged applicant mistreated child by grabbing and twisting child’s fingers. R reported incident to manager (“J”). J received statements from R containing allegation and statements from other employees containing additional allegations about applicant’s behaviour. R subsequently amended statement to say R had not seen applicant twist child’s fingers. Applicant suspended during investigation. Applicant advised of allegation of twisting child’s fingers and additional allegations raised by co-workers. Applicant advised by respondent allegations serious and if substantiated could result in dismissal. Applicant shocked and denied twisting child’s fingers or hurting child. Limited discussion on other allegations. Respondent issued applicant with final written warning. Applicant asked not to work in same room as R. Applicant felt co-workers attitudes towards applicant changed. J became more watchful of applicant and admitted applicant would have been aware of change in attitude. Staff meeting held to outline respondent’s expectations as to reporting inappropriate behaviour. Following day applicant told to work with R. Applicant upset and felt could not work with R. Applicant resigned. Applicant claimed constructively dismissed.;AUTHORITY FOUND –;UNJUSTIFED DISMISSAL: Authority ordered non-publication of child’s name. Not fair and reasonable for respondent to take into account additional allegations of applicant’s behaviour without further investigation. Co-workers who made additional allegations had not witnessed applicant twisting child’s fingers. Not fair and reasonable to reach view applicant “deliberately inflicted pain” on child when R did not see applicant twisting child’s fingers. Respondent failed to take applicant’s positive performance appraisals and lack of previous allegations into account prior to issuing final warning. Lack of substantive and procedural justification for warning constituted breach of respondent’s duty to applicant. Respondent failed to provide safe and healthy work environment when allocating applicant to same room as R. Reasonable applicant felt uncomfortable in relation to co-workers attitudes. Breach of duty by respondent rendered it reasonably foreseeable applicant unable to continue working and substantial risk of resignation. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for applicant to return to Authority for determination of quantum of lost wages. $10,000 compensation appropriate. |
| Result | Application granted; Reimbursement of lost wages (quantum to be determined); Compensation for humiliation etc ($10,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl11 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 14 |
| PDF File Link: | 2013_NZERA_Auckland_330.pdf [pdf 278 KB] |