| Summary |
UNJUSTIFIED DISADVANTAGE – Incident occurred between applicant and respondent’s financial controller (“L”) – Applicant advised general manager (“Z”) that L assaulted and abused her – Applicant went on special and annual leave and decided not to return to work until Z made decision – Z interviewed two witnesses and L – Applicant returned to work while L on leave – Z prepared written decision and gave copy to L but not applicant – After disciplinary meeting, Z issued with warning and required to apologise and attend course to improve relationships – When L returned to work, applicant raised disadvantage grievance based on incident and Z’s decision – Parties attended mediation – Applicant returned to work on basis steps would be taken to separate L from her – Applicant obtained another job and resigned –Authority found Z interviewed main people involved – Applicant claimed Z should have interviewed applicant’s manager (“J”), who knew of L’s prior behaviour - Found fair and reasonable employer would have interviewed J – Respondent argued J unsafe witness – Authority found Z did not establish that as reason at time, and did not give applicant opportunity to comment – Sole witness to incident (“F”) signed statement of events for applicant, then conflicting statement for Z – Authority found Z’s decision to rely on second statement only and not assess why F changed mind not action of fair and reasonable employer ensuring fair process and uncovering truth – Found Z should have reached conclusion on whether applicant swore, as it would have called truthfulness of L into question – Found unfair that Z provided L but not applicant with opportunity to have input into draft decision – Applicant complained Z’s four week investigation too long – Authority found Z responded to complaint properly and no prejudice to applicant because took leave, decided not to go to work when L there, and Z made arrangements such as mediation for when L returned to work – Authority found applicant entitled to copies of notes of Z’s interviews, and entitled to have someone present when Z interviewed F – Found reasonable for applicant to have had more involvement in process than afforded to her - Found applicant’s complaints about L’s conduct following Z’s decision not properly raised with Z so could not form basis for grievance – Found Z did not give applicant opportunity to comment on procedure of investigation, especially timing of investigation, which witnesses would be interviewed, and questioning of F – Found process lacked applicant’s participation or input, when applicant had direct interest regarding very serious allegation of assault impacting on employment – Found applicant disadvantaged by process, and outcome may have been different if investigation fairer – As outcome may have been different, applicant exposed to work environment where had to continue working with person she alleged put his hands on her and verbally assaulted her – Disadvantage unjustified – Remedies – Found no wages lost as result of grievance – Modest compensation award of $7,000 appropriate - UNJUSTIFIED DISMISSAL – Constructive dismissal – Authority found respondent acted on applicant’s complaint – Found Z’s decision not repudiatory breach of employment just because applicant disagreed with outcome - Found respondent took action of minimising contact, issuing L with formal warning, requiring apology and sent on course – Found timing of resignation distanced causal link with incident – Found occasional contact between applicant and L after incident not enough to repudiate contract – Found applicant found another job before resigning – No dismissal – HEALTH AND SAFETY – Applicant claimed respondent breached obligations under Health and Safety in Employment Act 1992 (“HSE”) – Authority found no jurisdiction to claim penalty under HSE in Authority – Found allegation of failure to take all practical steps to provide and maintain safe workplace only applicable as background to grievance claim – Found no complaint from applicant prior to incident, and employer took action following incident – No basis for claim - Hotel conference co-ordinator |