| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 164/08 |
| Hearing date | 6 Aug 2008 : 7 Aug 2008 (2 days) |
| Determination date | 28 October 2008 |
| Member | H Doyle |
| Representation | M Thomas, M Sinclair ; P McBride, S Fraser |
| Location | Invercargill |
| Parties | Robertson v Chief Executive of the New Zealand Fire Service Commission |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed subjected to unjustified action causing disadvantage when respondent failed to remove applicant’s regional manager (“R”) as decision maker in relation to applicant’s employment issues and personal grievances – Applicant requested R be removed because of involvement in concerns about applicant’s financial management; content of telephone call between R and national president (“W”) of New Zealand Professional Firefighters Union; and way respondent handled complaints by or about applicant – Authority found R made no relevant decisions that were unfair on basis of bias and predetermination - R took steps acknowledging applicant’s concern about relationship, including mediation - Reasonable for R to continue to deal with applicant's employment issues – Authority also noted it is for employer to choose its representative at mediation, and employee cannot insist on another representative - Claim of unjustified disadvantage because R not removed from role of decision maker not made out – Authority found performance plan following audit into matters of financial concern was reasonable – Found process investigating bullying complaint in relation to emails was justified, and administration manager (“CW”) did not accuse applicant of dishonesty in emails – However, Authority found telephone call between R and W was unjustified action that caused applicant disadvantage – Discussed applicant’s health, particularly memory, and impact on management ability – R understood applicant intended confidentiality – Employer obliged to take care not to damage relationship of trust and confidence in such “off the record” conversations with union officials - Remedies – Applicant hurt and distressed when advised of call – No impact on applicant’s standing among union members at station – R intended call to be off record and go no further - No contributory conduct – $3,000 compensation appropriate - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent’s breaches of terms of applicant’s employment so serious that applicant’s resignation reasonably foreseeable to respondent – Applicant claimed suffered depressive illness caused by treatment by R and CW – Authority found no breach by respondent for failing to provide safe and healthy workplace and take reasonable and practicable steps to avoid applicant suffering psychological harm – Authority found no evidence to support applicant’s claim that believed would not be treated differently on return to work – Found error in statement in reply did not amount to breach, but was simply mistake – Found investigation into bullying complaint not unreasonable – Found no breach regarding provision to applicant of administrative support – No breach in relation to statement that applicant refused to enter into discussions with management on routine matters – Authority found applicant unwell when resigned - Found respondent acted as fair and reasonable employer in those circumstances by asking applicant to reconsider resignation and suggesting further mediation - Applicant considered before confirming resignation - Evidence fell short of establishing serious breach of contract that would make it reasonably foreseeable applicant would not be prepared to continue employment – No constructive dismissal – 38 years service - Chief fire officer |
| Result | Application granted (disadvantage) ; Compensation for humiliation etc ($3,000) ; Application dismissed (dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Fire Service Act 1975 s 17A |
| Number of Pages | 26 |
| PDF File Link: | ca 164_08.pdf [pdf 86 KB] |