| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 526 |
| Hearing date | 17 Oct 2013 |
| Determination date | 15 November 2013 |
| Member | J Crichton |
| Representation | W Reid ; H McKenzie |
| Location | Tauranga |
| Parties | Brown v Bob Owens Retirement Village Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably dismissed by respondent - Applicant dismissed following six complaints from applicant's colleagues - Allegations of physical abuse, theft, inappropriate language and unpredictable and intimidating behaviour - No complainants prepared to go on record or file written complaint - Respondent claimed complainants fearful of retaliation - Whether respondent sufficiently investigated alleged wrongdoing and provided applicant opportunity to respond - Reliance on secret witnesses - Caregiver |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent relied fully on secret statements of six colleagues. Respondent mainly limited inquiry to whether complainants colluded. Some inquiry into whether applicant at work at time of alleged incidents. Complaints devoid of relevant specificity. Fear of retaliation did not mean fear rational. Complaints not sufficiently investigated. Only response applicant could make was denial due to lack of detail. Obligation to ensure residents safe but obligation could not override duty to employee. No proper opportunity for applicant to be heard. Dismissal unjustified. REMEDIES: Determination considered question of justification only. |
| Result | Application granted; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 - ERA s4(1A)(c)(i) |
| Cases Cited | Affco New Zealand Ltd v Nepia unreported, Shaw J, 28 September 2007, WC25/07;Dallas v Wellington Newspapers Ltd [1998] 2 ERNZ 456;NZ Food & Textile Workers Union v Bay Milk Products Ltd [1991] 2 ERNZ 231;Timu v Waitemata District Health Board [2007] ERNZ 419;Vice-Chancellor of Massey University v Wrigley [2011] ERNZ 138;Wikaira v Hokianga Health Enterprises Trust unreported, R Monaghan, 8 April 20045, AA123/05 |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Auckland_526.pdf [pdf 177 KB] |