| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 168/07 |
| Hearing date | 4 Sep 2007 - 4 Oct 2007 (5 days) |
| Determination date | 14 December 2007 |
| Member | A Dumbleton |
| Representation | F Lear ; S Turner |
| Location | Wellington |
| Parties | Gomes v Ministry of Social Development |
| Summary | UNJUSTIFIED DISMISSAL - Applicant dismissed as respondent considered his relationship with manager irrevocably broken down and lacked trust and confidence - Applicant had lodged disadvantage grievances with Authority but not resolved at time of dismissal - Dismissal substantively grounded on adverse consequences in workplace of applicant continuing to seek resolution of disadvantage grievances - What respondent regarded as conduct contributing to loss of trust and confidence was conduct carried on by applicant with reasonable and proper cause - Dismissal took away opportunity to meaningfully resolve grievances - In dismissing applicant, respondent also held him to account partly for making bullying complaint and challenging report from investigation and investigation process - Applicant had reasonable grounds for some of rejection - Fair and reasonable employer would not have relied on matter as part of grounds for dismissal - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Original disadvantage grievances also dealt with by Authority - Applicant alleged disadvantaged by performance review - Independent review reached same conclusion as original assessment - Review conducted fairly - No disadvantage - Second grievance related to removal from role as project leader - Applicant involved in review of suitability for role - Removed for genuine operational reasons and not disadvantaged - DISCRIMINATION - Alleged discriminated against by reason of involvement in union activities, namely submitting another personal grievance within 12 months of latest action complained about - Disadvantage grievances substantial part of reason for act of discrimination, which resulted in dismissal - Presumption respondent discriminated against applicant not rebutted - Discrimination grievance upheld - Remedies - Reinstatement to former position impracticable as relationship with manager completely broken down - Reinstatement to position no less advantageous ordered - Unit manager |
| Result | Application granted (Discrimination and dismissal) ; Reinstatement ordered ; Compensation for humiliation etc ($10,000)(Dismissal) ; ($4,000)(Discrimination) ; Application dismissed(Disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(A);S4(A)(c);ERA s103;ERA s103A;ERA s104(1)(b);ERA s104(2);ERA s107;ERA s107(1)(e);ERA s119 |
| Cases Cited | Anderson v Attorney-General [1992] BCL 2236;Malik v Bank of Credit [1997] 3 All ER 1 |
| Number of Pages | 36 |
| PDF File Link: | wa 168_07.pdf [pdf 115 KB] |