| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 132 |
| Hearing date | 6 Mar 2014 - 7 Mar 2014 (2 days) |
| Determination date | 07 April 2014 |
| Member | J Crichton |
| Representation | W Reid ; A Wilson |
| Location | Tauranga |
| Parties | Hammond v Radius Residential Care Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Whether applicant failed to care adequately for resident (A") found in own vomit - Whether applicant answered resident's ("B") bells as required - Whether applicant rough and uncommunicative with residents - Whether applicant verbally abusive of co-worker ("R") - Previous written warning for sleeping during shift - Previous complaint made by applicant and co-workers against R - Complaints about applicant made mostly by R - Suspension - English as second language - Caregiver" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of residents' identities. Conclusion applicant responsible for A's state perverse and more likely A vomited after checked by applicant. Applicant breached respondent's policies and procedures by observing B from staff area rather than physically answering B's bell. Applicant wearing earphone while working warranted warning at most. Respondent failed to consider fact significant number of applicant's co-workers adopted same approach to B because of B's fierce independence. R only source of allegations about applicant's lack of communication with residents and respondent should have proceeded with caution in placing exclusive reliance on R's testimony. Comments made by applicant about when would talk to residents training rather than disciplinary issue. Applicant and R both to blame for altercation equally. R not activated by malice in making complaints but respondent failed to be conscious of possibility claims would be exaggerated, put out of context or otherwise innocently misrepresented because of past antipathy and history with applicant. Extraordinarily wide support received by applicant from co-workers influential. Dismissal unjustified. REMEDIES: Reinstatement to vacant position on different shift practicable and reasonable. Reinstatement ordered. No contributory conduct. Respondent to pay applicant $10,000 reimbursement of lost wages. $4,000 compensation appropriate. |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($10,000) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124 |
| Number of Pages | 18 |
| PDF File Link: | 2014_NZERA_Auckland_132.pdf [pdf 257 KB] |