| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 548 |
| Hearing date | 8 April 2013 - 9 April 2013, 7 Jun 2013 (3 days) |
| Determination date | 28 November 2013 |
| Member | R A Monaghan |
| Representation | A Hansen ; G Bingham |
| Location | Tauranga |
| Parties | Hirini v Bay of Plenty District Health Board |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Applicant alleged bullied in workplace and alleged colleague aggressive and belittling – Whether team leader supported colleague’s actions - Team leader and colleague alleged applicant bully – Respondent sought meeting with applicant to discuss responses from team leader and colleague - Respondent unable to reach conclusion on alleged bullying – No formal action commenced in respect of bullying – Applicant advised investigation into complaints would continue – Colleagues formally complained about applicant’s aggressive and intimidating behaviour – Applicant suspended pending investigation – Parties agreed applicant could work from home –Concerns raised about applicant’s case management – Applicant declined to meet until better application provided – Applicant prevented from further contact with patient pending meeting with respondent – Independent consultant engaged to review applicant’s files – Consultant’s report critical of applicant’s management – Respondent forwarded matter to psychologists’ professional registration body – Applicant’s solicitors advised no option but to treat situation as constructive dismissal – Whether respondent failed to promptly investigate applicant’s complaint – Whether involvement of team leader in investigation created conflict of interest – Whether respondent failed to keep applicant safe during investigation - Clinical psychologist |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Potential conflict created by team leader remedied immediately. Delay excessive based on nature of complaint. Respondent breached duty to complete investigation in accordance with disciplinary process. Respondent failed to address applicant’s concerns in timely way. Respondent did not just ask applicant to restate case at meeting. No evidence respondent sought to elicit resignation. Scope of investigation unduly limited by cut-off date. Attempt made to resume investigation. No duty to provide assurances as to safety. Respondent should have arranged for alternative person to take over liaising with applicant about case management. Respondent breached duty to take reasonably practicable steps to provide applicant with safe workplace. Proposed suspension not proposal. Imposition of suspension breach of duty. Nothing inappropriate about selection of interviewees. Instruction applicant cease client contact not evidence meeting about case management intended to be disciplinary. Requiring cessation of further contact with clients fair and reasonable. No unfair removal of applicant’s duties. Applicant should have been given opportunity to comment on consultant’s findings before forwarded to psychologists’ board. Cumulative effect of breaches caused resignation. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $7,500 compensation for humiliation etc. |
| Result | Application granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($7,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Waikato District Health Board v Clear [2010] NZCA 305 |
| Number of Pages | 25 |
| PDF File Link: | 2013_NZERA_Auckland_548.pdf [pdf 322 KB] |