| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 29/09 |
| Hearing date | 13 Nov 2008 |
| Determination date | 16 March 2009 |
| Member | H Doyle |
| Representation | A McKenzie ; A Shakespeare |
| Location | Christchurch |
| Parties | X v Y |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent a trust providing services to people who experienced effects of mental health disorders – Referral to trust from other parties – Respondent argued applicant not dismissed, but if dismissal found, then serious misconduct justified dismissal – Authority satisfied applicant dismissed – Respondent argued applicant’s verbal abuse of co-worker (“first action”) and deliberate breach of client confidentiality (“second action”) justified serious misconduct findings – Authority found no unfairness in delay of disciplinary meeting and not relevant no suspension – Applicant argued other unspecified matters relied on by respondent in reaching decision to dismiss and not given opportunity to respond – Applicant explained at disciplinary meeting first action involved altercation with co-worker but considered both parties put matter at an end – Second action concerned referral to respondent of file on applicant’s daughter (“D”) – File stated D had attempted suicide – Applicant discussed appropriate protocol for dealing with D’s file and agreed manager would handle file – Applicant accepted discussed with managers confidentiality issues and told not to assume D’s mother (“M”) knew of D’s attempted suicide – Same day applicant telephoned M – Respondent received call that D wanted to lay complaint – D upset that applicant disclosed attempted suicide to M – Applicant explained very upset and contacted M because wanted to know what M knew and discuss response – Applicant argued only rang out of parental concern and acting on “auto-pilot” – Letter of dismissal gave Authority cause to reflect on whether other reasons for dismissal – Authority found main emphasis in letter on first and second actions – Found decision to dismiss only for first and second actions – Found although first action pursuable by fair and reasonable employer, incident itself not serious misconduct – Applicant’s Employment Agreement stated disclosure of confidential information serious misconduct that may lead to summary dismissal – Authority found in circumstances fair and reasonable employer would consider second action serious misconduct – Respondent argued took into account applicant’s lack of appreciation of seriousness of breach – Authority noted nature of respondent was relevant circumstance – Authority found in organisations that assisted people with mental health issues, confidentiality fundamental principle based on client’s right to decide whether information to be shared – Applicant argued felt compelled to raise matter with M as saw matter of life and death – Authority found no evidence failure to advise M would have been a life and death situation – Authority satisfied fair and reasonable employer would not find exception to confidentiality principle – Authority found managers realised difficult situation facing both applicant and trust – Protocol discussed and agreed to by applicant – Applicant had input into which manager dealt with D’s file and told manager relationship with D distant – Applicant’s deliberate decision to contact M destructive of trust and confidence managers entitled to have with applicant – Found fair and reasonable employer would have wanted to know applicant appreciated seriousness of breach so confidence maintained with respondent in future – Dismissal justified |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 12 |
| PDF File Link: | ca 29_09.pdf [pdf 48 KB] |