| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 24/06 |
| Hearing date | 19 Dec 2005 - 22 Dec 2005 (3 days) |
| Determination date | 08 February 2006 |
| Member | A Dumbleton |
| Representation | C Joslin, G Seagar ; C Patterson |
| Location | Auckland |
| Parties | Matich v Christian Healthcare Trust |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent determined applicant had failed to provide assistance when requested by resident for another resident (first incident"), and failed to assist another resident when he requested assistance ("second incident") - Respondent found applicant's conduct was gross misconduct under employment agreement and dismissed her - Test of justification provided by s103A Employment Relations Act 2000 ("ERA") overruled test in Oram (cited below) - Many decisions given under legislation prior to ERA and its 2004 amendment remained good law in so far as they were relevant to role of tribunal or court such as Authority when determining personal grievance claim - Authority satisfied that after carrying out full and substantially fair investigation respondent had reasonable grounds for believing applicant failed to perform duty in relation to both incidents - However caregiver ("J") who was with applicant at time of first incident also heard request and failed to assist - J given a "talking to" but otherwise not disciplined - Applicant blamed for preventing J from responding to request - J told respondent she had felt intimidated by applicant but applicant not told that "bullying" or similar behaviour was being investigated against her - Without conducting adequate inquiry respondent could not fairly conclude that bullying by applicant prevented J from carrying out her duty - Disparity of treatment - Explanation for disparity not adequate - Disparity too great to ignore as matter detracting from justification for dismissal - Respondent relied on cumulative effect of misconduct from both incidents when reaching decision to dismiss - Half of that combination could not prop up decision to dismiss - Unjustified dismissal - Remedies - Respondent tendered settlement proposal, which included reinstatement, to Authority before investigation meeting - Unusual and irregular step which achieved no useful purpose at that stage of investigation - Did not amount to admission that dismissal unjustified as justification was much a legal as factual question and one for Authority to decide - However did show reinstatement was practicable - Contributory conduct - Reinstatement could not be meaningfully adjusted to take account of contributory behaviour - Respondent would be justified in issuing applicant with formal disciplinary warning for second incident but this left to discretion of respondent - Caregiver" |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (quantum to be determined by parties)(contributory conduct 50%) ; Interest (8.5%) ; Compensation for humiliation (close to $10,000 reduced to $4,000) ; Costs reserved |
| Statutes | ERA s103A;ERA s120(2);ERA s124;ERA s125 |
| Cases Cited | Airline Stewards and Hostesses of NZ IUOW v Air NZ Ltd [1990] 3 NZILR 584 ; [1990] 3 NZLR 549;Chief Executive of the Department of Inland Revenue v Buchanan [2005] 1 ERNZ 767;Drummond v Coca-Cola Bottlers NZ Ltd [1995] 2 ERNZ 229;Man O'War Farm Limited v Bree unreported, Shaw J, 11 June 2002, AC 24/02;Man O'War Ltd v Bree [2003] 1 ERNZ 83;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 11 |
| PDF File Link: | aa 24_06.pdf [pdf 73 KB] |