| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 110/07 |
| Hearing date | 31 May 2007 - 14 Jun 2007 (2 days) |
| Determination date | 13 August 2007 |
| Member | G J Wood |
| Representation | B Buckett ; P Churchman |
| Location | Wellington |
| Parties | Choveaux v Accident Compensation Corporation |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant alleged respondent failed to provide safe workplace - Applicant’s manager subject of anonymous offensive emails that also mentioned applicant - Respondent attempted to ascertain sender but unsuccessful - Respondent aware applicant more susceptible to emails than average employee - Applicant claimed did not feel safe as appeared sender was co-worker - Raised personal grievance and began own investigation, which involved her breaching confidentiality by providing work documents to external party - Authority accepted not possible to locate sender of emails - Respondent supportive of applicant and provided options to minimise risk - Took all practicable steps to provide safe work environment - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Abandonment - While pursuing personal grievance over emails applicant’s father found to be terminally ill - Applicant alleged dismissed for abandonment when respondent knew she was attending bedside of dying father - Manager aware applicant with father but did not pass information on - Good faith obligations in Employment Relations Act 2000, in particular 2004 amendment, placed higher threshold on employers when considering abandonment than previously - Respondent knew applicant had not resigned and was instead trying to resolve safety issue to return to work - Respondent unreasonable to pursue abandonment - Request for applicant to contact HR also related to disciplinary investigation and applicant entitled to have representative - Respondent knew, or ought to have know applicant had genuine reasons for absence and ignored them in order to rely on abandonment policy - Obligations of good faith not met - Alternatively, respondent could not rely on policy as applicant contacted manager and not her fault message not passed on - No fair and reasonable employer would have denied employee leave in circumstances - Applicant dismissed - Dismissal unjustified - Remedies - Reinstatement not practicable as not in applicant’s best interests - Also position no longer required by respondent - Impact on applicant exacerbated by respondent’s response to letter seeking reinstatement which displayed no compassion - Applicant’s approach to investigating email sender contributed to situation, but failure to contact HR did not as respondent unreasonably did not allow representative to act on her behalf - Contributory conduct 20 percent - Assistant |
| Result | Application granted (Dismissal) ; Reimbursement of lost wages ($1,619.97) ; Compensation for humiliation etc ($10,000 reduced to $8,000) ; Application dismissed (Disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s66;ERA s103A;Employment Relations Amendment Act 2004 |
| Cases Cited | Bragg v. Ocean Beach Freezing Co Ltd [1985] ACJ 249;EM Ramsbottom Ltd v. Chambers [2000] 2 ERNZ 97;Loh v. Pauanui Publishing Ltd [2002] 1 ERNZ 64 (CA);Lwin v A Honest International Co Ltd [2003] 1 ERNZ 387;Pitolua v. Auckland City Council Abattoir [1992] 1 ERNZ 693;Spotless Services (New Zealand) Ltd v. Morrison unreported, Shaw J, 4 December 2006, WC23/06 |
| Number of Pages | 21 |
| PDF File Link: | wa 110_07.pdf [pdf 70 KB] |