| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 276/09 |
| Hearing date | 20 Oct 2008 - 24 Oct 2008 (4 days) |
| Determination date | 13 August 2009 |
| Member | A Dumbleton |
| Representation | D Gardiner ; R Harrison |
| Location | Auckland |
| Parties | Walker v Procare Health Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Incompatibility - Applicant claimed dismissal for incompatibility unjustified - Respondent believed was serious disharmony between applicant and several co-workers - Were issues with applicant’s communication style such as use of block capitals, bold typeface and red colour in emails - Few weeks before dismissal appeared parties had reached non-disciplinary way to overcome problems - Applicant requested details of complaints about her by other staff that had been put on hold while parties dealt with other issues - Applicant wished to be able to respond to complaints so her views would be available should complaints be resurrected in future - Respondent believed applicant’s desire to discuss complaints was further sign of incompatibility and dismissed applicant - Found respondent’s actions not those of fair and reasonable employer - Found fair and reasonable employer would not have regarded request to formally respond to unresolved complaints as blameworthy conduct shifting responsibility for incompatibility to applicant - Found unfair and unreasonable to base dismissal decision substantially, if not entirely, on reopening of complaints, at applicant’s request, without any final conclusion about merits being reached - Found respondent did not act in procedurally fair way - Found could not reasonably conclude incompatibility mostly applicant's responsibility - Dismissal unjustified - Remedies - Found applicant’s interaction with co-workers did contribute to disharmony in workplace - However, conduct not casually connected to unjustified dismissal so as to justify finding of contributory conduct - No contributory conduct - Applicant entitled to reimbursement of lost wages for two weeks between end of notice period and commencement of new employment - Applicant to be reimbursed difference between salary with respondent and new employment for 11 week period - Found applicant suffered considerable hurt feelings, humiliation and distress - $11,500 compensation appropriate - Remedies of apology and conversion from dismissal to resignation unavailable under Employment Relations Act 2000 - Financial Controller |
| Result | Application granted ; Reimbursement of lost wages (13 weeks) ; Compensation for humiliation etc ($11,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Mabry v West Auckland Living Skills Homes Trust Board (Inc) unreported, Travis J, 19 Dec 2001, AC 86/01 |
| Number of Pages | 11 |
| PDF File Link: | aa 276_09.pdf [pdf 40 KB] |