| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 129/08 |
| Hearing date | 22 Apr 2008 - 24 Apr 2008 (3 days) |
| Determination date | 28 August 2008 |
| Member | H Doyle |
| Representation | M Hardy-Jones ; C Heaton |
| Location | Blenheim |
| Parties | Finlay v Healthcare of New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed numerous unjustified disadvantages – Authority noted will not pedantically examine ordinary ups and downs of employment relationship – Firstly, applicant claimed unjustifiably disadvantaged by respondent’s actions regarding applicant’s proposal – Authority found fair and reasonable for respondent to apply rules to implementation of plan which balanced everyone’s needs, not just applicant’s – Found respondent giving applicant opportunity to implement plan could not be unjustified disadvantage - Secondly, applicant claimed unjustifiably disadvantaged by respondent’s actions regarding collegial difficulties – Applicant claimed endured insults and unprofessional conduct from other coordinators and felt singled out - Claimed workplace environment culturally unsafe and suffered racial harassment – Authority found respondent dealt with issues raised appropriately – Found applicant did not clearly raise issue that workplace otherwise culturally unsafe - Thirdly, applicant claimed unjustifiably disadvantaged as unfair that organised Christmas party with little support and recognition from co-workers – Authority not satisfied that being asked and agreeing to organising party was unjustified action or disadvantage - Fourthly, applicant claimed unjustifiably disadvantaged by working over Christmas period – Authority found respondent agreeing to applicant undertaking Christmas duty not unjustified action - Fifthly, applicant claimed unjustifiably disadvantaged by removal of ability to work secondary employment as support worker and on-call work – Parties had agreed applicant could work outside normal work hours as support worker – Respondent unilaterally removed secondary work, stating applicant’s poor performance in primary employment indicated overworked – Authority found removing weekend work unlikely to have reduced applicant’s work during week – Found decision to stop providing applicant with secondary work unjustified - Sixthly, applicant claimed unjustifiably disadvantaged because client and staff complaints manufactured or encouraged by management or colleagues – Authority found evidence did not support claim – Found respondent dealt with complaints fairly - Seventhly, applicant claimed unjustifiably disadvantaged by unfair performance management process – Authority found warning reasonable and what fair and reasonable employer would have done in circumstances – Found performance concerns genuine, not to single out or harass applicant – Found daily meetings for three weeks objectively not so unreasonable as to amount to harassment – Performance process did not unjustifiably disadvantage applicant - Eighthly, applicant claimed unjustifiably disadvantaged by unavailability of part-time/acute support workers – Respondent instigated roster to clarify coordinators use and ensure equal sharing of support workers – Authority found reasonable action in workplace where resources shared – Authority not satisfied that management told support worker not to have contact with applicant - Ninthly, applicant claimed unjustifiably disadvantaged by removal of private use of vehicle – Employment agreement did not refer to provision of vehicle for private use – Authority found ability to take car home was privilege which respondent was entitled to withdraw – Found disadvantage may have arisen in failure to give reasonable notice and reasoning before use withdrawn – Found matter not formally raised within 90 day period and not continuing breach so claim dismissed – Only fifth claim of unjustified disadvantage made out - UNJUSTIFIED DISMISSAL – Incompatibility – Respondent argued torturous history and four of five employees in office, plus area manager, would resign if applicant returned to work - First issue whether respondent entitled to reach conclusion that employment relationship irreparable – Authority found applicant’s view and distrust of respondent and colleagues was significant barrier between applicant and managers, particularly after first personal grievance filed – Found fair and reasonable employer would have concluded that employment relationship irreparable – Second issue whether irreconcilable breakdown attributable to applicant – Authority found some issues dealt with formally, but many left when relationship became difficult - Found decision of co-workers to resign if applicant returned was result of respondent’s failure to properly manage and stop behaviours impacting on office relations – Found reason for incompatibility not solely or substantially attributable to applicant – Third issue whether fair and reasonable employer would have dismissed applicant in all circumstances – Authority accepted extremely difficult to have replaced staff if resigned – Found fair and reasonable employer would not have dismissed applicant for reason of incompatibility as employer should have properly managed developing incompatibility issue – Applicant had no opportunity to explain, deny or stop behaviours causing difficulty – Dismissal unjustified – Remedies – Applicant’s attitudes and behaviours contributed to situation giving rise to grievance and generally damaged work environment – 60 percent contributory conduct – Applicant entitled to one month’s notice and holiday pay when employment terminated – Leave reserved for parties to return to Authority on matter if not resolved – Authority made no other award for lost wages due to finding that employment relationship was irreparable at time of termination – Little evidence about effect of dismissal on applicant – Compensation of $2,000 after contributory reduction appropriate – Service Coordinator |
| Result | Applications granted (dismissal)(disadvantage) ; Applications dismissed (disadvantage) ; Reimbursement of lost wages and holiday pay (1 month)(quantum to be determined) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s121 |
| Cases Cited | Mabry v West Auckland Living Skills Home Trust Board (Inc) Unreported, Travis J, 19 Dec 2001, AC 86/01;New Zealand Fire Service v Reid [1998] 2 ERNZ 250 |
| Number of Pages | 38 |
| PDF File Link: | ca 129_08.pdf [pdf 121 KB] |