| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 431/08 |
| Hearing date | 19 Sep 2008 |
| Determination date | 22 December 2008 |
| Member | R Arthur |
| Representation | B Nalder ; P McBride |
| Location | Auckland |
| Parties | Taylor v Idea Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed forced to resign as respondent failed to take proper safety measures to protect her from assaults by client – Also claimed unfairly accused of incorrectly administering medication – Applicant claimed distress caused by incidents resulted in miscarriage – Applicant employed to care for respondent’s clients who were intellectually disabled – Applicant assaulted by client and required medical attention – Respondent responded with full range of post-assault care and staff de-briefing – Applicant indicated willingness to continue to work with client - Applicant assaulted again by client – Respondent concerned client would continue to assault applicant so applicant redeployed to alternative work site – Authority satisfied events did not disclose breach by respondent to take reasonably practicable, proportionate, measures to ensure applicant’s safety at work, and that respondent took reasonable care to avoid unnecessary risk – Authority found evidence did not support assertion miscarriage caused by client assaults - Applicant felt uncomfortable at alternative work site and asked to be transferred – Found applicant’s transfer to alternative site at short notice not breach of respondent’s safe worksite duties - Incident occurred where appeared client mistakenly given double dose of medication – Applicant believed being blamed for error - Before investigation concluded applicant’s representative informed respondent that applicant not well enough to work - Applicant accepted respondent entitled to investigate incident – Authority found respondent’s investigation into incident did not amount to breaches of duty to treat applicant fairly and ensure her safety at work – Authority found respondent’s administrative oversight in not providing incident report to ACC did not amount to breach of duty by respondent – Applicant resigned via representative - Respondent decided would not accept resignation until met with applicant’s representative – Respondent declined to pay applicant’s final pay - Respondent argued had no written authority from representative to represent applicant and did not consider had received genuine resignation – Authority found respondent had previously accepted representative’s authority to act for applicant and that respondent knew applicant had resigned - Found respondent’s response to resignation and request for final pay not consistent with good faith obligations – Respondent’s stance cynical and ill-advised – However, Authority found applicant not forced to resign - No constructive dismissal - UNJUSTIFIED DISADVANTAGE – Authority found respondent’s actions regarding applicant’s final pay and status of representative where breaches of good faith – Breaches amounted to unjustified disadvantage – Remedies - $2,000 compensation appropriate - Community Support Worker |
| Result | Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($2000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Clause 10 of Schedule 2;ERA s236(3);ERA s122 |
| Cases Cited | Attorney General v Gilbert [2002] 2 NZLR 342 |
| Number of Pages | 12 |
| PDF File Link: | aa 431_08.pdf [pdf 40 KB] |