| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 247 |
| Hearing date | 5 - 6 Nov 2013 |
| Determination date | 03 December 2013 |
| Member | D Appleton |
| Representation | L Andersen ; B Dorking |
| Parties | Kirkland v The Vice Chancellor of the University of Otago |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Incapacity - Applicant unjustifiably disadvantaged by respondents failure to investigate complaints and unjustifiably dismissed by respondent |
| Abstract | Applicant (Ms Kirkland) employed by respondent (The Vice Chancellor of the University of Otago) as head of marketing services (Education and Training Sector). Applicant claimed unjustifiably disadvantaged by bullying in the work place and respondent’s failure to investigate complaints made against applicant. Applicant claimed unjustifiably dismissed by respondent. Respondent’s director of marketing and communications (“N”) alleged applicant rude to external contractor during meeting. Independent investigation carried out following complaint from union regarding N’s management style. Applicant questioned why particular staff chosen for advisory group. Applicant claimed undermined and not part of process. N claimed applicant rude to staff in advisory group and held meeting to discuss behaviour. Advisory group members claimed made to feel unwelcome by applicant. Further complaint made against applicant. Complainant (“W”) referred to applicant as “rude and dismissive”. Applicant claimed N colluded with W to fabricate complaint. Meeting held with N, applicant and member of human resources. Applicant claimed ambushed by meeting and denied allegations. Applicant raised grievance regarding handling of complaint and claimed N bullied applicant. Respondent did not believe actions of N amounted to bullying or harassment. Respondent advised applicant meeting not disciplinary and no further action would be taken in regards to complaint against applicant. Respondent claimed still open to applicant to request investigation in writing. Applicant advised to “let it go” to which applicant reluctantly agreed. Applicant took sick leave due to stress. Allegations of bullying raised by applicant’s counsel. Respondent notified counsel allegations previously investigated and rejected. Respondent asked whether applicant intended to resign and whether allegations went beyond those previously investigated. Applicant utilised sick leave but did not return to work. Respondent advised applicant of proposal to terminate employment on grounds of medical incapacity. Applicant claimed no medical incapacity as applicant able to work if respondent provided proper working environment. Applicant notified respondent of respondent’s failure to protect applicant from unjustified allegations by either investigating allegations or requiring more information from N. Applicant claimed failure to investigate created stress as not able to modify behaviour without more information. Respondent claimed workplace hazards applicant found “intolerable” usual part of working in team. Respondent considered whether any alternative positions available but unable to identify anything suitable. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non publication of independent report regarding allegations against N. N did not falsely accuse applicant of being rude to external contractor. N genuinely felt applicant rude to members of advisory group. Minutes of meeting recorded members felt unwelcome due to applicant’s behaviour. Complaint from W not fabricated. W senior member of University and unlikely to invent complaint without strong motivation. Appropriate for N to raise complaint with applicant. Applicant disadvantaged by meeting without prior notice but disadvantage not unjustified. Applicant genuinely did not understand how behaviour rude and was not deliberately difficult. Not made unequivocally clear applicant wanted more detail until relationship between parties broken down. Applicant held view N made up allegations of rudeness but investigation by respondent found complaints not fabricated. N did not unreasonably fail to provide details of rudeness. No bullying by N towards applicant. No unjustified disadvantage in relation to bullying.;Respondent’s investigation asked whether complainants had genuine belief applicant rude but investigation did not look at whether beliefs were reasonably held. Earlier correspondence did not state applicant wanted investigation but letter in response to proposed dismissal set out in detail why applicant should not be dismissed and what was required for safe work place. From that point respondent aware investigation required for applicant’s return to work. Applicant lacked ability to conceive why behaviour caused offence and was entitled to have details of behaviour explained. Applicant unjustifiably disadvantaged by applicant’s failure to investigate substance of complaints against applicant. Respondent’s failure caused applicant to feel working environment unsafe. Requirement to provide medical certificate confirming applicant fit to work or be dismissed unjustified. Dismissal unjustified. Authority noted relationship between parties exacerbated by legalistic approach adopted in correspondence. Approach rarely appropriate while relationship on-going and capable of positive resolution. Authority recommended respondent work to develop set of strategies to deal with situations involving employees who adopted aggressive or defensive approach to informal performance management. REMEDIES: 25 per cent contributory conduct. Respondent to pay applicant $2,882 reimbursement of lost wages for unjustified disadvantage and $2,083 reimbursement of lost wages for unjustified dismissal. $7,500 compensation appropriate. |
| Result | Result: Application partially granted (unjustified disadvantage); Application granted (unjustified dismissal); Contributory conduct (25%); Reimbursement of lost wages ($2,882.25)(unjustified disadvantage) ($2,083.50)(unjustified dismissal); Compensation for humiliation etc ($7,500); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 - ERA s4(1A)(b) - ERA s103 - ERA s124 - ERA s128(1) - ERA s128(2) - ERA s128(3) |
| Number of Pages | 30 |
| PDF File Link: | 2013_NZERA_Christchurch_247.pdf [pdf 274 KB] |