| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 470 |
| Hearing date | 10 Oct 2013 |
| Determination date | 11 October 2013 |
| Member | E Robinson |
| Representation | S McKenna ; V Doebhakta |
| Location | Hamilton |
| Parties | Christensen v The Montessori Foundation known as Puna Chambers Inc |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent – Applicant spoke to respondent about being short staffed – Applicant claimed provided supervision of children during scheduled lunch break and required to take work home – Applicant’s requests for annual leave declined – Applicant experienced symptoms of stress – Applicant informed respondent seeking new employment – Applicant requested cover when centre short-staffed – Applicant advised to get physical medical examination and check for “chemical imbalance” – Applicant declared medically unfit for work – Applicant returned to work from sick leave – Applicant informed not supposed to be at workplace – Whether applicant suspended – Respondent suggested applicant take six months unpaid leave – Applicant required to remain on sick leave – Respondent raised five allegations of misconduct including throwing milk container at child, walking out of job and treating staff with disrespect – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – New employment agreement reduced applicant’s entitlement to annual holidays from eight weeks to four weeks – Applicant refused to sign new employment agreement – COSTS – Applicant sought $19,000 contribution towards costs – No appearance for respondent – Centre manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant medically cleared to return to workplace. No substantive justification for excluding applicant from workplace. Applicant suspended from employment. No evidence respondent followed fair process. Applicant unjustifiably disadvantaged by suspension. Decision already made to exclude applicant before return from sick leave. Respondent predetermined outcome. Applicant’s responses not genuinely considered. Not fair and reasonable to conclude applicant guilty of serious misconduct. Applicant worked for 15 years without disciplinary action. Dismissal not appropriate outcome. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $3,150 reimbursement of lost wages for unjustified disadvantage and $23,530 reimbursement of lost wages for unjustified dismissal. $16,000 compensation appropriate.;ARREARS OF HOLIDAY PAY: Applicant did not accept new employment agreement. Applicant entitled to eight weeks annual holiday. Respondent to pay applicant $11,475 arrears of holiday pay.;COSTS: Two days investigation meetings. Issues raised resulted in increased costs for applicant. Appropriate to increase notional daily tariff. Respondent to pay applicant $12,000 contribution towards costs. |
| Result | Applications granted ; Reimbursement of lost wages ($26,680) ; Compensation for humiliation etc ($16,000) ; Arrears of holiday pay ($11,475) ; Costs in favour of applicant ($12,000) |
| Main Category | Personal Grievance |
| Statutes | Education (Early Childhood Centres) Regulations 1998 Third Schedule;ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s103A;ERA s103A(3);ERA s124;ERA Second Schedule cl12;ERA Second Schedule cl15 |
| Cases Cited | Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 15 |
| PDF File Link: | 2013_NZERA_Auckland_470.pdf [pdf 224 KB] |