| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 4/07 |
| Hearing date | 5 Oct 2006 |
| Determination date | 22 January 2007 |
| Member | P Cheyne |
| Representation | C French ; P Churchman |
| Location | Invercargill |
| Parties | Clark v Mackway-Jones and ors as Trustees of the Family Start Support Services (Invercargill) Trust |
| Other Parties | Miller, Tommei |
| Summary | UNJUSTIFIED DISMISSAL – Whether person intending to work – Applicant managed Family Start Programme (FSP) – FSP run by a trust under contract with Southland District Health Board (SDHB) – Applicant raised concerns with SDHB about financial and other irregularities being perpetrated by trustees – SDHB began audit and set up new trust to run FSP – Applicant offered, and accepted, employment with new trust pending programme being transferred to Ministry of Social Development – Before applicant started work respondents became concerned he was implicated in improprieties disclosed by audit and other staff expressed concerns about him – Respondents wrote to applicant and halted negotiations - Unjustified dismissal – Remedies – Applicant sought reinstatement – Authority did not accept language of s123(1)(a) Employment Relations Act 2000 indicated grievant must have actually worked in position to be reinstated to it – Person need not actually have started work to have access to full range of grievance remedies, including reinstatement – Respondents argued applicant tainted by improper dealings of previous trust - Respondents able to make inquires into any part applicant may have had in improprieties of former trust before employing him – Clear from investigation meeting applicant had considerable support from nearly all FPS staff – Temporary nature of position not an impediment to reinstatement – Reinstatement ordered – Little evidence about applicant’s earnings since dismissal but Authority did not accept loss related to failure to mitigate – Applicant unlikely to have been able to secure employment within field of expertise pending resolution of claims – Applicant worked no days with new trust – Manager |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (10 months less earnings) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s123(1)(a);ERA s128(2);Labour Relations Act 1987;Protected Disclosures Act 2000 |
| Cases Cited | Auckland Clerical and Office Staff Employees IUOW v Wilson [1980] ACJ 357;Canterbury Hotel etc IUOW v The Elms Motor Lodge Ltd [1989] 1 NZILR 958;Harrison v Tuckers Wool Processors Ltd [1998] 3 ERNZ 418;NZ Amalgamated Engineering etc IUOW v Alliance Freezing Co. (Southland) Ltd [1988] NZILR 1287;Reporoa Stores Ltd v Treloar [1958] NZLR 177;Warwick Henderson Gallery Ltd v Weston [2005] 1 ERNZ 921 (CA) |
| Number of Pages | 12 |
| PDF File Link: | ca 4_07.pdf [pdf 142 KB] |