| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 153 |
| Hearing date | 23 Jul 2013 |
| Determination date | 05 August 2013 |
| Member | D Appleton |
| Representation | A Sharma ; S O'Brien |
| Parties | Mrs X v An Employer |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Fixed-term contract – Applicant suffered stress associated with relief teaching role – Respondent coordinated and funded counselling sessions for applicant – Applicant appointed to fulltime role with G kindergarten – Whether colleague (“Z”) caused misinformation about applicant to be passed to head teacher – Complaint made by student teacher about applicant – Investigation commenced – Applicant took special leave – Staff made generalised allegations and complaints about applicant – Whether respondent failed to ask further questions of colleagues following request from applicant – Applicant suffered emotional breakdown – Respondent suggested applicant take one year leave of absence – Applicant asked to identify preferred kindergarten to return to – Applicant commenced role at V Kindergarten – Applicant refused to consider relieving – Parties agreed applicant would transfer kindergartens – Applicant inadvertently shut child in equipment shed – Applicant applied for fulltime teaching position at B Kindergarten – Applicant undertook action to falsely implicate Z in act of dishonesty – Action came to attention of respondent – Applicant admitted intentionally giving first name as that of Z – Disciplinary investigation commenced – Applicant took stress leave – Applicant attended disciplinary meeting – Applicant provided medical information confirming suffered from depression – Applicant allowed to return to workplace – Applicant prohibited from contacting children or parents – Respondent concluded applicant committed significantly dishonest act – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Kindergarten teacher |
| Abstract | AUTHORITY FOUND –;INJUNCTION: Authority ordered non-publication of applicant’s identity. No evidence respondent displayed bias or predetermination. Reasonable to believe applicant in state of mental health that posed risks of danger to children. Decision to prohibit contact not unreasonable. Respondent’s investigation did not conclude applicant’s actions deliberate and intended to deceive. Respondent should not have treated applicant’s actions as misconduct justifying dismissal. Issues with applicant should have been addressed under collective employment agreement competency provisions. Arguable case applicant unjustifiably dismissed. No evidence reinstatement confusing for children, parents and staff. Medical evidence unequivocal no danger or risk to children. Risk of tensions if applicant returned to G kindergarten. Respondent could seek alternative arrangement if disruption evident. No evidence applicant replaced. Reasonable to contemplate interim reinstatement. Applicant’s family circumstances suggested need for urgent resolution of matter. Balance of convenience favoured interim reinstatement. Applicant deprived of opportunity for reassessment under collective employment agreement. Overall justice of case favoured reinstatement. Application for interim reinstatement granted on conditions. |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | Education (Early Childhood Services) Regulations 2008 r57;Education (Early Childhood Services) Regulations 2008 r57(1);Education (Early Childhood Services) Regulations 2008 r57(2);ERA;ERA s3;ERA s4;ERA s4(1);ERA s4(1A)(a);ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s125;ERA s127;ERA s127(2) |
| Cases Cited | Angel v Fonterra Co-operative Group [2006] ERNZ 1080;Angus v Ports of Auckland (No 2) [2011] ERNZ 466;Click Clack International Ltd v James [1994] 1 ERNZ 15;Lewis v Howick College Board of Trustees (2010) 7 NZELR 539;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;X v Auckland District Health Board [2007] ERNZ 66;X v Y Ltd [1992] 1 ERNZ 863 |
| Number of Pages | 36 |
| PDF File Link: | 2013_NZERA_Christchurch_153.pdf [pdf 342 KB] |