| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 526 |
| Hearing date | 30 Sep 2014 - 2 Oct 2014 (3 days) |
| Determination date | 19 December 2014 |
| Member | TG Tetitaha |
| Representation | E T Dent (in person) ; A Sullivan |
| Location | Hamilton |
| Parties | Dent v Waikato District Health Board |
| Summary | DISCRIMINATION – SEXUAL HARASSMENT – DURESS – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Incompatibility – Applicant claimed discriminated against on basis of marital status, disability, employment status and political opinion – Applicant claimed sexually harassed – Applicant claimed subjected to duress due to union membership – Applicant claimed unjustifiably disadvantaged by respondent’s treatment of applicant’s bullying complaints, respondent requiring applicant to undertake drug and alcohol test, and written warning – Applicant claimed unjustifiably dismissed by respondent – Applicant complained bullied by colleagues, including manager (“M”) – Micro-management – Weekly meetings – Allocation of work – Removal of duties – Gossip – Whether applicant demanded to visit colleague’s (“H”) home on weekend to discuss workplace issues – Whether phone conversation threatening – Drug testing for reasonable cause – Safety sensitive – Negative result – Administrative secretary |
| Abstract | AUTHORITY FOUND –;DISCRIMINATION – SEXUAL HARASSMENT – DURESS – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No evidence of discrimination, sexual harassment or duress. Some allegations of bullying not raised within 90 days but applicant able to allege pattern of bullying. No evidence of bullying by assistant group manager. Performance management by M did not amount to bullying. Some of applicant’s claims speculative or did not involve M. Applicant’s credibility relating to some incidents affected by fact applicant did not raise incidents at time. M did not threaten applicant’s job. One incident admitted by M but resolved by apology at time and, apart from incident, evidence did not establish bullying of applicant by M. Respondent’s investigation into bullying allegations by applicant defective because credibility findings made without interviewing applicant. Given alleged bullying not established apart from one incident resolved at time, defect in investigation minor and did not result in unfairness to applicant. Applicant not unjustifiably disadvantaged by respondent’s treatment of applicant’s bullying complaints. Respondent had reasonable cause to test applicant under drug and alcohol policy. Applicant had opportunity to consider concerns and had access to legal representation. Escorting of applicant to test site not unusual, others not told where applicant going and applicant consented to test. Applicant not unjustifiably disadvantaged by requirement to undertake drug and alcohol test. Respondent did not question H again and could not reasonably exclude possibility that H mistaken about applicant’s behaviour during phone conversation. Even if applicant’s behaviour threatening, actions not misconduct applicant could be disciplined for under bullying and harassment policy which excluded one-off incident. Applicant not provided with sufficient information to respond and respondent did not give reasonable consideration to issues of credibility. Applicant unjustifiably disadvantaged by written warning. Numerous and repeated errors made by applicant. Applicant resisted steps to improve performance. Applicant made bullying and other allegations against various staff in retaliation for performance concerns being raised. Applicant’s mental health status not responsible for incompatibility. Applicant responsible for serious incompatibility in workplace. Number of allegations against applicant in twelve month period high but evidence founded respondent’s concerns on each occasion. Unfair to require applicant to attend disciplinary meeting urgently when applicant unwell. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Reinstatement not practicable or reasonable. $2,500 compensation appropriate. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Contributory conduct (50%) ; Compensation for humiliation etc ($2,500) ; Applications dismissed (discrimination)(sexual harassment)(duress) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(c);ERA s103(1)(d);ERA s103(1)(f);ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s105(1)(b);ERA s105(1)(h);ERA s105(1)(j);ERA s105(1)(k);ERA s114;ERA s114(1);ERA s114(2);ERA s114(4);ERA s124;ERA s125;ERA s128 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Medismart Ltd) (2009) 6 NZELR 530;Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Board of Trustees of Te Kura Kaupapa Motuhake o Tawhiuau v Edmonds [2008] ERNZ 139;Carter Holt Harvey Ltd v Yukich [2005] ERNZ 300;Creedy v Commissioner of Police [2006] ERNZ 517;Dickson v Unilever New Zealand Ltd (2009) 6 NZELR 463;Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971;Goodfellow v Building Connexion Ltd trading as ITM Building Centre [2010] NZEmpC 82;Harris v Chief Executive, Department of Corrections [2000] 1 ERNZ 544;Hollands v Jam Marketing Pty Ltd unreported, D King, 31 July 2007, AA179A/07;Isaac v Chief Executive of the Ministry of Social Development unreported , V Campbell, 5 June 2008, AA200/08;Kneebone v Schizophrenia Fellowship Waikato Inc unreported, V Campbell, 13 February 2007, AA31/07;Lal v Skellerup Clothing and Rubber Ltd [1979] ACJ 259;Mabry v West Auckland Living Skills Homes Trust Board (Inc) (2002) 6 NZELC 96,573;NCR (NZ) Corp Ltd v Blowes [2005] ERNZ 932;New Zealand Printing & Related Trades IUOW v Allied Press Ltd [1986] ACJ 434;Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2008] ERNZ 155 ; [2008] 3 NZLR 193;Tate v South Westland Timber Co Ltd [1986] ACJ 458;Walker v Procare Health Ltd [2012] ERNZ 303 |
| Number of Pages | 38 |
| PDF File Link: | 2014_NZERA_Auckland_526.pdf [pdf 355 KB] |