| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 154/05 |
| Hearing date | 16 Sep 2005 |
| Determination date | 21 September 2005 |
| Member | D Asher |
| Representation | G O'Sullivan ; P McBride |
| Location | Wellington |
| Parties | Fitzgerald v IHC NZ Inc |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Alleged applicant held pillow over IHC service user’s face (“B”) – Also alleged applicant stopped another service user from making himself a hot drink, did not let him turn a heater on and yelled at him – Applicant suspended – Denied holding a pillow or throwing it at B’s head - Evidence against applicant underwhelming – B’s claims, when investigated were vague and changed over time – Did not meet requirement for convincing evidence – Not a full and fair investigation disclosing conduct capable of being regarded as serious misconduct – Respondent had no basis on which to prefer what the two service users said over applicant’s explanation - Unjustified dismissal – Non-publication order prohibiting publication of any details leading to identity of any IHC service users – Community support worker |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined)(3 months) ; Compensation for humiliation etc ($13,000) ; Costs reserved |
| Cases Cited | Battin v Western Bay Health Ltd [1998] 1 ERNZ 462;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;W&H Newspapers Ltd v Oram [2000] 2 ERNZ 448;Whanganui College Board of Trustees v Lewis [2000] 1 ERNZ 397 |
| Number of Pages | 12 |
| PDF File Link: | wa 154_05.pdf [pdf 40 KB] |