| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 279/09 |
| Hearing date | 4 Sep 2008 - 20 Oct 2008 (3 days) |
| Determination date | 14 August 2009 |
| Member | M Urlich |
| Representation | J Roberts, R Warren ; M Beech, S Grice |
| Location | Auckland |
| Parties | X v Bay of Plenty District Health Board |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed capping of her unlimited sick leave constituted unjustified disadvantage - Applicant experienced serious harm incident while at work - Applicant returned to work part time approximately two months after the incident - On medical advice applicant ceased work approximately three months later - Applicant went on paid sick leave - Applicant claimed cause of serious harm incident and consequent ongoing ill health was work related stress - Respondent denied claim - Department of Labour had abandoned prosecution into serious harm incident - Parties’ multi employer collective agreement (“MECA”) provided for unlimited sick leave on certain conditions - MECA provided detailed process for review of sick leave where frequency or pattern of absence problematic, excessive, prolonged, or employee did not participate in rehabilitation programme - Issue of applicant’s sick leave first raised several months after applicant went on sick leave for second time during discussion about applicant’s current health - No specific concern about applicant’s sick leave put to her during meeting - Applicant indicated financial need for continued sick pay - Issue of sick leave pay not discussed in any detail at subsequent meetings discussing applicant’s health - Approximately nine months after going on sick leave for second time applicant advised paid sick leave to be capped to 5 days for six month period - Applicant claimed this advice came as shock - Respondent claimed applicant on notice sick leave entitlement could be reviewed - Respondent claimed made decision to reduce sick leave after considering applicant had taken 222.25 days sick leave, information in sick leave guidelines, outcomes of review of area applicant employed in, and history of other staff members’ sick leave compared with applicant’s - Authority found respondent did not follow process set out in MECA - Found applicant not put on written notice that review panel meeting to review sick leave with view to capping it - Respondent’s concerns and basis for those concerns not put to her in writing or discussed at the meeting - Applicant not given opportunity to respond - Review panel did not make recommendation to respondent which was subsequently actioned - Found respondent contractually bound to follow process in MECA and in failing to do so, capping applicant’s sick leave breached contractual obligation and deprived her of the paid sick leave entitlement - Disadvantage unjustified - Remedies - Applicant sought reinstatement of paid sick leave - Authority ordered reinstatement of paid sick leave from date payment stopped until date applicant’s employment with respondent terminated - Applicant suffered significant financial impact due to loss of paid sick leave - Applicant’s concern and uncertainty compounded applicant’s medical condition and led to poor sleep and need for anti-anxiety medication and feeling that health and wellbeing had suffered as result of respondent’s attempts to save money - Award of $12,000 compensation appropriate - Authority did not accept grounds existed for award of special damages |
| Result | Application granted ; Sick leave (quantum to be determined) ; Interest awarded ; Compensation for humiliation ($12,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA Second Schedule cl11 |
| Number of Pages | 15 |
| PDF File Link: | aa 279_09.pdf [pdf 65 KB] |