| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 5/01 |
| Determination date | 23 February 2001 |
| Member | N Taylor |
| Representation | J McGlashan ; C O'Connor |
| Location | Christchurch |
| Parties | Keane v Health South Canterbury Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Whether constructive dismissal - Applicant immigrated for community based position - Employed in hospital ward - Respondent denied community position offered - Alternative remedies available - Genuine offer of reinstatement given - No evidence that resignation reasonably foreseeable - No constructive dismissal - Unjustified disadvantage claim made out - Midwife |
| Abstract | This was a unsuccessful constructive dismissal claim and a successful unjustified disadvantage claim investigated by the Employment Relations Authority.;While living in England the applicant answered an advertisement for the position of a midwife with the respondent. The applicant was offered, and accepted, the position of Community Based Midwife. The applicant moved to New Zealand, together with her family, and began employment with the respondent. She was asked to work in the hospital until the position of hospital midwife had been filled. Meanwhile, the respondent publicised the community midwifery service and included details of the applicant.;The respondent employed a new hospital midwife but failed to transfer the applicant to the community service. The applicant questioned this but was told to wait. Despite meetings with the Service Leader (Mrs O") and the Chief Executive Officer the applicant was not transferred. Mrs O denied that the applicant was ever offered the position and became challenging and aggressive in her manner towards the applicant.;After a meeting with the respondent's Director of Nursing and Mrs O the applicant was given a document titled "Clarification of terms of employment". However this contradicted what had been agreed in the previous meeting and the applicant refused to sign it. She sought legal advice and submitted a notice of grievance. The applicant resigned after a telephone call from the service leader during which the applicant alleged Mrs O became aggressive towards her. The respondent offered to reinstate the applicant but she refused.;HELD: (1) The applicant failed to prove her claim of constructive dismissal. While she was treated badly by some members of staff, the other senior officers accepted the applicant's claim and tried to resolve the problem. There were alternatives available to the applicant such as the offer of reinstatement which was genuine. There was no evidence to indicate that the applicant's resignation was reasonably foreseeable.;(2) The applicant was unjustifiably disadvantaged in that she was exposed to unjustifiable and unreasonable treatment. Mrs O's inability to accept the validity of the applicant's claim and her attempt to justify the breach rather than face up to it resulted in an unjustifiable action. The community based position was important to the applicant and the failure to abide by the offer and the subsequent prevarication by Mrs O deprived the applicant of her entitlement to job satisfaction. This amounted to a disadvantage." |
| Result | Application for unjustified dismissal dismissed ; Application for unjustified disadvantage granted ; Compensation for humiliation etc ($9,000) ; Costs reserved |
| Statutes | ECA s27(1)(b);ERA s103(1)(b);Fair Trading Act 1986 s12 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers' IUOW [1994] 1 ERNZ 168;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 ; [1985] 2 NZLR 372;Elston v State Services Commission (No 3) [1979] 1 NZLR 218;Haddon v Victoria University of Wellington [1995] 1 ERNZ 375;Hill v Water Resources Commission (NSW) (1985) 14 IR 158;Meharry v Guardall Alarms NZ Ltd [1991] 3 ERNZ 305;NZ Association of Polytechnic Teachers Inc v Northland Polytechnic Council [1990] 2 NZILR 723 |
| Number of Pages | 23 |
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