| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 33/07 |
| Hearing date | 26 April 2006 |
| Determination date | 13 February 2007 |
| Member | J Scott |
| Representation | M Hammond ; G Bevan |
| Location | Auckland |
| Parties | Clear v Waikato District Health Board |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Alleged disadvantaged by failure to properly investigate complaints or provide safe work environment - Also claimed unjustified dismissal - Applicant believed bullied by team leader (TL") for 16 years - Described TL as "organisational psychopath" - After raising numerous complaints applicant told manager wanted TL's employment terminated - Respondent agreed to investigate 32 concerns ("fourth complaint") - Applicant requested further EAP counselling - Respondent considered psychiatric assessment more appropriate - Applicant exhausted sick leave and sought discretionary leave - Leave declined as 500 hours annual leave available and reason cited for leave (post-traumatic stress disorder) could only be professionally diagnosed - Respondent decided to take no further steps without psychiatrist's report - Concluded allegations against TL not justified and inappropriate to continue investigation - Conclusion never communicated to applicant - Respondent then focused on finding solution to allow applicant to return to work - Advised employment would end unless returned to original position - When applicant did not respond, employment terminated - No grievance in relation to first three complaints - Respondent had no knowledge of applicant's stress or health until took leave - Took all reasonable steps to ensure applicant's safety - However, investigation into fourth complaint became unfair - Respondent developed closed mind towards applicant - Scope and depth of inquiry too limited - Application for discretionary leave bungled - No contractual right to require psychiatric assessment - Breach of duty to halt investigation until applicant complied - Failure to adequately communicate with applicant compounded matters - Respondent also concluded TL bullied by applicant but did not advise her of finding - Investigation not full and fair - However, applicant's demand TL's employment be terminated contradicted concept of fair inquiry and predetermined outcome - Breach of duty to carry out full and fair investigation into fourth complaint - Unjustified disadvantage - Applicant suffered no additional harm as result of breach of duty - However, treatment frustrating and humiliating - Although relationship dysfunctional, applicant not bullied by TL - Claim based on failure to provide safe workplace declined - No positions available for which applicant qualified and willing to undertake - Dismissal justified - Remedies - Parties directed to mediation to discuss remedies - Nurse/Midwife" |
| Result | Application granted in part (Disadvantage) ; Application dismissed (Dismissal) ; Parties directed to mediation ; Orders accordingly ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s114(1);ERA s114(6);HSE s2(1);HSE s2A;HSE s19;Health and Safety in Employment Amendment Act 2002 s6 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Cartwright v Commissioner of Police [2001] 1 ERNZ 255 ; (2001) 6 NZELC 96,232 (EC);Evans v Gen-i Ltd unreported, D King, 29 August 2005, AA 333/05;Gilbert v Attorney-General in respect of the Chief Executive of the Department of;Corrections [2000] 1 ERNZ 332;Goldstone v Cogent Communications Ltd unreported, A Dumbleton, 13 May 2004, AA 170/04;McGowan v Nutype Accessories Ltd [2003] 1 ERNZ 120;Nilson-Reid v Attorney-General in respect of the Director-General of the Department of Conservation [2005] 1 ERNZ 951;NZ Woollen Workers IUOW v Distinctive Knitwear NZ Ltd [1990] 2 NZLIR 438 |
| Number of Pages | 51 |
| PDF File Link: | aa 33_07.pdf [pdf 223 KB] |