| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 221/07 |
| Hearing date | 10 Aug 2006 & 10 Nov 2006 |
| Determination date | 27 July 2007 |
| Member | L Robinson |
| Representation | P Swarbirck ; R Harrison |
| Location | Auckland |
| Parties | Taylor v Raukura Hauora O Tainui |
| Summary | UNJUSTIFIED DISMISSAL – Applicant established foundation to purchase respondent health clinic – Respondent believed applicant’s intentions surrounding purchase and subsequent intention to set up new clinic contrary to duty of fidelity and consequently dismissed applicant – Applicant discussed proposal to purchase with respondent’s Chief Executive Officer (“M”) – Respondent alleged applicant made threat to pressure sale by telling M that resignations of colleagues forthcoming – Authority found applicant failed to disclose own personal connection with trust – Not disputed that applicant told M if proposal not accepted resignations would be forthcoming – Authority also found M told applicant would look forward to receiving applicant’s resignation – Proposal to purchase respondent rejected – Applicant denied raising staff resignations as a “threat” or ultimatum and confirmed professional responsibilities to respondent – Authority found possibility of resignations raised merely to highlight reality of situation – Applicant claimed authorised to disclose intentions of some doctors working for respondent – Applicant claimed M fully engaged in process and never referred to any potential conflict of interest or brought up any issues during correspondence – Authority found statements in correspondence inconsistent with allegation of threat by applicant – Authority found in context of open discussion of commercial nature, applicant’s statement made as idle observation and statement of fact – M’s statements and advice not consistent with perception of threat – M gave evidence to Authority that no threat perceived – Respondent claimed applicant breached general duty of fidelity owed to respondent – Authority concluded respondent acquiesced and through M conducted commercial negotiations with applicant in open manner without objection – Correspondence between applicant and M related to commercial purchase – Correspondence not an incident of employment relationship – In negotiating sale and purchase, respondent not acting as employer and applicant not carrying out employment duties – No objection made to applicant pursuing own interests known to M and respondent – Statement of forthcoming resignations made by prospective purchaser to prospective vendor – Respondent alleged after proposal to purchase declined, applicant actively took steps to establish competing clinic and solicited employees – Applicant approached director of District Health Board (“DHB”) to ascertain requirements to set up new clinic – Applicant also sought approval to join Primary Health Organisation (“PHO”) – Applicant claimed intended to ensure respondent’s best interests – Authority found applicant never disclosed precisely who involved in foundation – Applicant claimed intended foundation to work collaboratively with respondent, however, not disclosed to respondent – Authority found M always knew of applicant’s intentions and personal involvement with foundation – M not concerned about applicant’s intentions and encouraged discussion about purchasing respondent and setting up alternative practice – Authority concluded if respondent did not want applicant to set up clinic then should have communicated immediately when fixed with knowledge – Whether applicant’s and other staff’s activities contrary to duties to respondent did not matter as undertaken with respondent’s full knowledge and implied consent or acquiescence – When declined purchase proposal respondent should have reinforced expectations of fidelity and good faith – Respondent could have investigated applicants allegations when thought not truthful – Respondent’s failure to conduct proper enquiries meant no evidence to prove allegations – Allegation that applicant solicited other employees contrary to duty of fidelity never put to applicant – Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – Respondent failed to wait for response from applicant before suspension – Staff meeting where announcement made that applicant suspended unfair in circumstances – Suspension unjustified – REMEDIES – Respondent alleged applicant transferred patient database to personal email – Applicant claimed M knew was looking at database and did not object – Authority found overtone of secrecy apparent in emails sent by applicant – Also unknown to respondent, but with notice of existence, letter by applicant that competing practice would not be complimentary to respondent – Authority found if respondent had gathered information by way of full and fair investigation then may have been in position to justify termination – Applicant did not act in good faith towards respondent because did not disclose colleagues involved when asked – Whether or not expressly asked, had duty to be forthcoming to employer and to volunteer information in active and communicative way – Contributory conduct 33 percent – Applicant entitled to reimbursement of lost wages – Applicant claimed was devastated by respondent’s decision and treatment throughout process – Also claimed reputation damaged – Compensation $10,000 – Costs reserved – Registered medical practitioner |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined by parties)(Contributory conduct 33.3%) ; Compensation for humiliation etc ($15,000 reduced to $10,000) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s124 |
| Number of Pages | 35 |
| PDF File Link: | aa 221_07.pdf [pdf 112 KB] |