| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 79 |
| Hearing date | 30-Jul-15 |
| Determination date | 20 August 2015 |
| Member | Trish MacKinnon |
| Representation | J Drayton, A Webster ; P McBride, G Ballara |
| Location | Wellington |
| Parties | Austing and Anor v Wellington Free Ambulance Service Trust |
| Other Parties | Gibson-Horne |
| Summary | INJUNCTION - Applicants sought interim reinstatement - Applicants dismissed for serious misconduct after investigations upheld complaints of alleged intimidating behaviour, inappropriate communication and failure to follow instructions - Patient safety - Paramedics |
| Abstract | AUTHORITY FOUND -;INJUNCTION - Significant delay between the incidents and applicants being informed of investigations - Not fair and reasonable for respondent to attribute specified actions of first applicant to second applicant because applicants worked together at time of incidents. Second applicant had strongly arguable case for unjustified dismissal. Arguable complaints regarding first incident appropriately dealt with evidenced by first applicant’s apology and affected staff member’s failure to complain at the time. Arguable first applicant’s behaviour during second incident did not justify dismissal considering first applicant nearing end of twelve hour shift and felt below-par. Problematic for respondent to rely on third incident as reason for dismissing first applicant due to different recollection of witnesses and eight month delay between third incident and investigations. Applicant had not been informed respondent had issues with manner of relating to colleagues or managers. First applicant had strongly arguable case for unjustified dismissal. Reintegration of applicants eminently achievable through a managed process. Applicants had arguable case for reinstatement. Untested evidence suggested applicants would suffer financially if not reinstated. Applicants unlikely to maintain technical expertise and Authority to Practice if not reinstated. Applicants would likely be out of workplace for one year until Authority’s prospective determination of substantive issues. Applicants unlikely to find similar work in region which would maintain skills. Applicants had continued work without incident throughout investigations. Applicants willing to modify behaviour to address concerns. No adequate alternative remedy. Balance of convenience favoured applicants. Applicants dedicated and skilled paramedics and expressed respect for senior management. Overall justice favoured applicants. Interim reinstatement to be subject to conditions. Application for interim reinstatement granted. |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s3(a) - ERA s103A - ERA s103A(2) - ERA s125 - ERA s127 - ERA s127(4) |
| Cases Cited | McKean v Ports of Auckland Ltd [2011] NZEmpC 128, [2011] ERNZ 312;Wellington Free Ambulance Service Inc v Adams [2010] NZEmpC 59, [2010] ERNZ 128;X v Y Ltd v NZ Stock Exchange [1992] 1 ERNZ 863 (EmpC) |
| Number of Pages | 21 |
| PDF File Link: | 2015_NZERA_Wellington_79.pdf [pdf 216 KB] |