| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 153/09 |
| Hearing date | 18 Mar 2009 - 19 Mar 2009 (2 days) |
| Determination date | 10 September 2009 |
| Member | P Cheyne |
| Representation | MJ Thomas ; P Churchman |
| Location | Christchurch |
| Parties | Atley v Southland District Health Board |
| Summary | DISCRIMINATION – Applicant provided medical certificate stating unable to work night shifts due to medical condition – Psychiatrist advised applicant had bipolar disorder and condition incompatible with working intermittent night shifts – Respondent’s acting director of nursing (“R”) advised applicant would not make exception to policy that all nurses in ED work night shift – Decision meant applicant could no longer work in ED so deployed to other nursing positions not requiring night shift work – Applicant claimed respondent should have accommodated inability to work night shifts by rostering shifts only in day and afternoon – Applicant claimed decision not to accommodate disability amounted to discrimination on grounds of disability – Authority gave parties opportunity to make additional submissions in light of McAlister v Air New Zealand – Authority assessed whether respondent’s refusal to exempt applicant from usual obligation for nurses in ED to work night shifts fell within either s104(1)(a) or s104(1)(b) Employment Relations Act 2000 (“ERA”) – Authority found applicant lost remuneration, experienced anxiety, and suffered reduction in job satisfaction from being unable to work in ED – Found actions amounted to detriment – Authority found respondent would have discriminated against applicant if established respondent, by reason directly or indirectly of disability, subjected applicant to proven detriment in circumstances in which other employees on work of that description not subjected to such detriment – Found comparison between treatment of applicant and other employees required to identify whether discrimination on prohibited ground – Authority questioned whether applicant be compared with other ED nurses generally or only with other ED nurses who for a good reason other than a prohibited ground of discrimination not able to work night shift – Authority noted as with McAlister comparator position must be one leaving open some relevance for ss29 and 35 Human Rights Act 1993 (“HRA”) – Authority found for applicant to succeed under s104(1)(b) ERA must show subjected to detriment in circumstances in which other employees employed by respondent on work of that description would not be subjected to such detriment – Authority found should compare applicant’s situation with that of ED nurse – Found prima facie discrimination in that no other reason for R’s decision – Authority found only exception in s29(1)(b) HRA potentially relevant – Found nature of applicant’s duties meant could only perform them with risk of harm to self and others – Found unreasonable to take risk – Authority found next issue whether applicant could, without unreasonable disruption take reasonable measures to reduce risk to normal level – Authority found limiting applicant’s roster to day and afternoon shifts would have caused only minor disruption – Also found deploying co-workers could have reduced risk of harm to normal level – Found steps would not have caused unreasonable disruption for purposes of s29(2) HRA – Authority also found application of s29 HRA limited by s35 HRA – Authority concluded as s29 HRA exception did not apply to respondent, respondent did discriminate against applicant on basis of disability in breach of s104(1)(b) ERA – UNJUSTIFIED DISADVANTAGE – Authority found respondent wanted to retain applicant but would not make exception to policy – Applicant claimed no return to work meeting when returned from period of leave – Authority found parties had agreed would be meeting – Found respondent had responsibility to ensure meeting arranged – Found applicant disadvantaged as result of failure to arrange meeting – REMEDIES – Authority ordered respondent to pay applicant for each pay period where paid less than rate in original position – Authority found ample evidence of distress however difficult to distinguish distress caused by bipolar condition from that caused by unlawful discrimination – Found seriousness of wrong gave rise to inference would result in significant distress – Authority found applicant’s failure to disclose bipolar condition contributed to discrimination grievance – Found timely disclosure would have resulted in focus on risk issue – Found 25 percent contributory conduct – Authority awarded applicant $7,500 compensation after deduction for contribution – Registered nurse |
| Result | Applications granted (Discrimination)(Disadvantage) ; Arrears of wages (quantum to be determined) ; Compensation for humiliation etc ($10,000 reduced to $7,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s104(1)(a);ERA s104(1)(b);ERA s104(2);ERA s106(1);Human Rights Act 1993 s29;Human Rights Act 1993 s29(1)(b);Human Rights Act 1993 s29(2);Human Rights Act 1993 s35;Health and Safety in Employment Act 1993 s6 |
| Cases Cited | Mcalister v Air New Zealand [2009] NZSC 78;Pooley v NZ Society for the Intellectually Handicapped Inc unreported, BW Stephenson, 7 June 1995, AT 102A/95;Air Nelson Limited v Neil 28/10/08, Couch J, CC 15/08 |
| Number of Pages | 17 |
| PDF File Link: | ca 153_09.pdf [pdf 58 KB] |