| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 101/09 |
| Hearing date | 29 Apr 2009 - 30 Apr 2009 (2 days) |
| Determination date | 04 August 2009 |
| Member | P R Stapp |
| Representation | P Cranney, F Litzsimons ; J Unsworth, S Little |
| Location | Wanganui |
| Parties | Shepherd v Whanganui District Health Board |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant employed as psychiatric nurse at psychiatric unit - Incident involving patient where applicant intervened to help co-worker manage situation - During incident applicant badly injured when kneed in stomach by patient - Applicant’s hand connected with patient’s face causing patient’s lip to bleed - Respondent investigated incident and allegation of serious misconduct for alleged assault - Assault allegation linked to three breaches of respondent’s code of conduct for serious misconduct - At first meeting applicant given opportunity to respond to allegations - Respondent met with “management of aggression and restraint trainer” for opinion on applicant’s actions - Respondent conducted interviews with other staff involved in incident - Applicant informed another breach of code of conduct relating to same incident being alleged - Second meeting held where applicant given opportunity to respond to assault allegation and further breach of code of conduct - Investigators found three out of four breaches of code of conduct established and recommended applicant be dismissed - Applicant dismissed - Authority found fair and reasonable employer would not have dismissed applicant - Found while applicant did hit patient, action to be viewed in context where co-worker in potential difficulty, applicant injured and were different interpretations of what happened - Found requirement for sufficient evidence to meet gravity of charge not met - Found fair and reasonable employer would not have come to honestly held belief applicant deliberately and wilfully “assaulted” patient in circumstances - Respondent failed to prove applicant’s conduct deliberate and wilful - Authority found decision to dismiss made before full findings of investigation given to applicant - Applicant not given opportunity to mitigate and comment on findings before penalty considered - Found respondent breached own code of conduct by not informing applicant clearly who decision maker would be - Dismissal unjustified - REMEDIES - Applicant sought reinstatement - Respondent relied on applicant’s contribution to situation giving rise to personal grievance as being serious enough not to warrant reinstatement - Also argued applicant’s behaviour and actions significant because assaulted a patient - Respondent also claimed applicant did not follow respondent’s policies and procedures so could not be trusted and relied upon to set example to other staff and would be public outrage - Authority found no prior difficulties involving applicant and no details of how applicant might be unable to set example for staff he had not previously worked with - Found matter had not been matter of public notice and no evidence of public outrage - Found no other professional action and findings and conclusions with which to speculate what public reaction there might be - Authority concluded respondent’s representative overstated public reaction and that applicant could not be trusted - Found not appropriate for Authority to second guess what public reaction might be or to be influenced by submission when no evidence to support submission - Authority found no proof impracticable to reinstate applicant - Reinstatement ordered - Authority found applicant tried to get work, but failed to do so in chosen profession - Applicant’s loss of wages covered 62 week period - Authority found avoidable delays in getting matter to mediation and then Authority investigation so limited lost wages claim to 52 weeks - Deducting income applicant received from casual contract work respondent to pay $21,874.75 reimbursement of lost wages - Authority accepted manner in which decision to dismiss conveyed shocked applicant and applicant devastated by loss of job - $8,000 compensation awarded - Psychiatric nurse |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($21,874.75) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA Second Schedule cl10 |
| Cases Cited | Airline Stewards and Hostesses (NZ) IUOW v Air NZ Ltd [1990] 3 NZLR 549;Air New Zealand Ltd v Hudson [2006] 3 NZELR 155;Auckland CC v Hennessey (1982) ERNZ Sel Case 4;BP Oil NZ Ltd v Northern etc Distribution Workers etc IUOW (1989) ERNZ Sel Case 512;Chief Executive of the Department of Corrections v George Imo unreported, Shaw J 14 Nov 2007 AC 57/07;The Chief Executive of Unitec Institute of Technology v Henderson unreported, Colgan CJ, 19 Mar 2007, AC 12/07;Click Clack International Ltd v James [1994] 1 ERNZ 15;Honda NZ Ltd v NZ etc Shipwrights etc. IUOW (1990) ERNZ Sel Cas 885;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 14 |
| PDF File Link: | wa 101_09.pdf [pdf 55 KB] |