| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 404 |
| Hearing date | 30 - 31 Aug 2013;1 Sep 2013 |
| Determination date | 06 September 2013 |
| Member | E Robinson |
| Representation | B Manning ; E Butcher |
| Location | Auckland |
| Parties | Kamal v Horizon Radiology Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by transfer of workplace, disparity of treatment and respondent’s failure to provide training, and unjustifiably dismissed by respondent - Following relocation applicant did not receive training on x-ray equipment in clinic - Applicant previously worked in clinic and manager claimed appeared familiar with equipment - X-ray machine malfunctioned while applicant operating on patient and applicant continued operation resulting in over-exposure or over-radiation - Applicant failed to immediately report incident as required by respondent’s safety plan and over-radiation discovered by manager during quality assurance check - Applicant had prior warning regarding quality of work - Medical Radiation Technologist |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Adequate explanation given by respondent as to perceived disparity of treatment between applicant and other employee. Respondent’s decision to close clinic and transfer applicant sound commercial decision. Applicant did not consider needed training on equipment at new clinic or would have informed respondent. No unjustified disadvantage. Reasonable for respondent to conclude over-radiation to patient significant and applicant responsible. Respondent conducted full investigation and respondent’s conclusion applicant’s actions constituted serious misconduct fair and reasonable. Patient not harmed by incident and applicant continued to work for seven week period with limited supervision and no authorisation restrictions. Applicant's initial failure to complete incident reporting form rectified and timing not criticized by regulatory body. Fair and reasonable employer would not have made decision to dismiss applicant. Dismissal unjustified. REMEDIES: 70 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $3,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (70%) ; Reimbursement of lost wages (quantum to be determined); Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(3);ERA s124;ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;Cooke v Tranz Rail Ltd (formerly New Zealand Rail Ltd) [1996] 1 ERNZ 610;Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 |
| Number of Pages | 26 |
| PDF File Link: | 2013_NZERA_Auckland_404.pdf [pdf 300 KB] |