| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 86/07 |
| Hearing date | 17 May 2007 |
| Determination date | 28 May 2007 |
| Member | D Asher |
| Representation | R Foitzik & S Simpson ; no appearance |
| Location | Wellington |
| Parties | Tamati v New Zealand Life Care Ltd (in receivership) t/a Glenbrook Lodge Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct - No appearance by respondent - Respondent’s business and assets sold – Receivers advised insufficient funds to defend claim or pay any awards – Applicant asked determination be issued – Respondent received complaint alleging applicant abused resident and suspended applicant suspended on pay – Concluded applicant admitted serious misconduct and summarily dismissed her – Applicant accepted verbally abused resident, if speaking to him in loud voice and saying amongst other things he was lazy amounted to abuse – Applicant’s agreement significantly qualified - Fair and reasonable scrutiny of applicant’s position would have made clear she did not accept abusing resident and not open to respondent to rely on “admission” – Applicant adamantly denied assaulting resident – Evidence of other employees supported applicant’s position – Not clear why respondent relied on part of residents compliant but not all of it, particularly when other evidence supported applicant’s position – Respondent did not establish admitted loud voice breached employee policy - Significant disparity of treatment as respondent declined to investigate, and took no action, when co-worker admitted speaking in similar way to resident - Unilateral suspension unjustified, however respondent did make right some other procedural defects - Applicant's behaviour had some elements of abuse and was misconduct, but did not amount to serious misconduct warranting summary dismissal - Dismissal unjustified - Remedies - Length of service and sense of injustice arising out of disparity of treatment taken into account when awarding compensation - Resident and respondent entitled to more considerate behaviour - Contributory conduct 30 percent - Caregiver |
| Result | Application granted ; Reimbursement of lost wages ($1,800 reduced to $1,260) ; Compensation for humiliation etc ($10,000 reduced to $7,000) ; Costs ($1,500) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | IHC New Zealand Incorporated v Fitzgerald [2006] 1 ERNZ 932 |
| Number of Pages | 8 |
| PDF File Link: | wa 86_07.pdf [pdf 29 KB] |