| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 514 |
| Hearing date | 18 Aug 2014 - 20 August 2014 (3 days) |
| Determination date | 16 December 2014 |
| Member | V Campbell |
| Representation | R Tomkinson ; G Davenport |
| Location | Auckland |
| Parties | McHugh v Chief Executive of the New Zealand Fire Service |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by oral warning – Allegations of bullying made against applicant – Whether applicant spoke to complainant about new colleague in disparaging way – Whether applicant inconsistent in greeting complainant – Whether applicant micro-critiqued complainant when giving feedback on demonstration – Whether applicant told complainant that did not trust complainant during meeting called to resolve differences – RAISING PERSONAL GRIEVANCE – Whether unjustified disadvantage grievance relating to claim respondent failed to provide safe workplace raised within 90 days – Fire risk management officer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Report into complaints by consultant (“S”) failed to investigate possibility that underlying cause of difficulties was complainant’s view that applicant had not earned rank. S’s report did not include all information collated. Respondent could not conclude applicant’s discussion with complainant about new colleague left complainant feeling negative, disparaged, stressed and anxious. Respondent failed to conduct further inquiries about whether complainant initiated discussion. Respondent did not explore applicant’s explanation about inconsistent morning greetings. Respondent failed to consider all limbs of definition of bullying. Respondent failed to interview manager present when applicant critiqued complainant’s demonstration. Respondent failed to seek clarification from complainant about what applicant said during critique or about escalating description of manner in which applicant presented feedback. Respondent took no steps to clarify applicant’s explanations about meeting with complainant. Respondent could not conclude applicant’s conduct amounted to bullying. Disparity of treatment between applicant and other employees. Applicant unjustifiably disadvantaged by oral warning. REMEDIES: Applicant recorded three conversations secretly and did not disclose existence of recordings during investigation or disciplinary process. Applicant refused to participate in mediation unreasonably. 25 per cent contributory conduct. $5,250 compensation appropriate. Oral warning to be removed from applicant’s file.;RAISING PERSONAL GRIEVANCE: Claim for award of special damages not appropriate. Claim to be dealt with as personal grievance. Grievance not raised within 90 days. |
| Result | Application granted (unjustified disadvantage) ; Contributory conduct (25%) ; Compensation for humiliation etc ($5,250) ; Orders made ; Application dismissed (raising personal grievance) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114(1);ERA s124 |
| Cases Cited | George v Auckland Council [2013] ERNZ 675;Harwood v Next Homes Ltd [2003] 2 ERNZ 433;Lavery v Wellington Area Health Board [1993] 2 ERNZ 31;Moxon v Pathways Health Ltd t/a Pathways [2011] NZERA Christchurch 151;Timu v Waitemata District Health Board [2007] ERNZ 419 |
| Number of Pages | 34 |
| PDF File Link: | 2014_NZERA_Auckland_514.pdf [pdf 344 KB] |