| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 131/09 |
| Hearing date | 12 May 2009 - 13 May 2009 (2 days) |
| Determination date | 19 August 2009 |
| Member | H Doyle |
| Representation | P McBride ; D Gould |
| Location | Nelson |
| Parties | Pegram v Westpac New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – First issue whether applicant’s performance rating unjustified and/or discriminatory causing disadvantage – Manager (“M”) gave applicant low performance rating – Applicant sought review by area manager (“J”) - Applicant claimed M changed behaviour and more critical of applicant at or about time applicant became union delegate for FINSEC – Claimed caused financial disadvantage including potential loss of bonus and increase in salary – Authority accepted M had concerns about applicant’s behaviour – Found documents showed some concerns raised with applicant – Authority found was basis for low performance rating – Authority not satisfied applicant discriminated against – Applicant claimed performance appraisal review process flawed – Claimed element of predetermination and J used meeting to raise new performance/misconduct concern (“PACT concern”) – Authority not satisfied J approached review with closed mind – Found J’s actions in appraisal review justified – If were unjustified, not satisfied was disadvantage – Authority found union aware new PACT concern to be raised – Found not unjustified that concern verbally raised with applicant - Second issue whether disciplinary meeting and outcome unjustified causing disadvantage – Respondent held disciplinary meeting relating to PACT concern and two loan issues – Further issue raised on day – Applicant claimed disciplinary meeting actually due to applicant’s request to review performance appraisal – Authority found insufficient evidence issues raised for unjustified or malicious purposes – Applicant’s loan authority removed – Authority found not unfair or unreasonable that applicant not directly heard by decision maker, because decision made on basis of information discussed at meeting with applicant and support person – Found if wrong, no disadvantage because applicant not at work during period loan authority removed for, and loan authority reinstated upon return to work - Third issue whether respondent dealt with bullying allegation about M in way fair and reasonable employer would deal with allegation, or whether applicant disadvantaged by way matter investigated and/or in reintegration back to workplace – “RM” investigated applicant’s bullying complaint – R found no harassment or bullying but report made recommendations regarding applicant and M – Authority not satisfied applicant entitled to see recommendations about M – Authority found respondent’s actions in investigation and recommendations fair and reasonable – Authority found no personal grievance in terms of bullying allegations or reintegration into workplace after report released - Fourth issue whether process and issuing of formal warning and removal of applicant’s credit authorisation limit for six month period were actions of fair and reasonable employer – J issued applicant with formal written warning shortly after meeting – Applicant did not accept warning – Senior employee (“P”) reviewed matter, with slightly different conclusions to J’s – P’s report not acted on – Authority found J decision-maker so no unjustified disadvantage in applicant not providing input to P’s report – Authority found unjustified failure to implement P’s review – Found applicant did not have opportunity to explain new concerns identified by P and unable to understand behaviours or performance respondent concerned about – Disadvantage unjustified - Warning removed from file - Fifth issue whether applicant’s performance management by new manager (“W”) unjustified and caused disadvantage – Authority found W justified in meeting to discuss performance management plan after earlier warning – Applicant did not accept advice that not meeting performance standards – Applicant claimed constituted workplace hazard – Applicant went on several weeks’ sick leave and instructed counsel – Authority found advising employee that not meeting performance standards and disciplinary outcome possible not workplace hazard per se nor breach of employer’s duty – Authority found no unjustified disadvantage in performance management - Sixth issue whether respondent acted as fair and reasonable employer regarding applicant’s sick leave – Respondent wrote letter to applicant’s doctor advising believed applicant procured medical certificate to avoid performance management – When doctor did not reply within stipulated timeframe, respondent advised applicant that rejected medical certificate and expected applicant to return to work next day – Applicant contacted counsel and did not return to work until date stipulated in medical certificate – Authority accepted bare medical certificate gave respondent no guidance for return to work plan or suggestions – Authority found letter requesting applicant return to work despite medical certificate unjustified – Disadvantage unjustified – Sick leave not reinstated - Seventh issue whether fair and reasonable employer would have issued final written warning following disciplinary meeting – Respondent issued applicant final warning for breaching code of conduct for not following proper procedures – Authority found disciplinary outcome unjustified as fair and reasonable employer would have imposed final warning – Found applicant’s employment less secure so constituted disadvantage – Disadvantage unjustified – Final warning replaced with formal warning – REMEDIES - Authority found three personal grievances – No contributory conduct – Orders made regarding warning and final warning on file – Authority made global compensation award for unjustified disadvantages – Bank customer consultant |
| Result | Application granted ; Orders made ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(b);ERA s103(1)(c) |
| Number of Pages | 37 |
| PDF File Link: | ca 131_09.pdf [pdf 106 KB] |