| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 156/09 |
| Hearing date | 9 Sep 2009 - 10 Sep 2009 (2 days) |
| Determination date | 19 October 2009 |
| Member | G J Wood |
| Representation | A Scott-Howman ; P Churchman |
| Location | Wellington |
| Parties | Borman v The Director-Genral of Health |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustified disadvantage – Claimed failure to ensure safety at work breached employment agreement – Claimed respondent breached good faith obligations – Respondent underwent restructuring process and discovered issues relating to conflict of interests and breach of contracting procedures – Respondent’s deputy director-general (“R”) sought review relating to issues from chief internal audit officer – Standard audit practice to not notify parties concerned when first conducting review – R, upon receiving auditor report, provided applicant with private documentation and memorandum stressing matter serious and suspension possible to conduct impartial enquiry – Applicant suffered psychological harm as result of information and sought medical assistance – Applicant sought sick leave - Applicant suffered stress throughout restructure process and sought independent assistance – Applicant never advised respondent of stress – Applicant’s representative sought further information about allegations and copy of audit report – Response delayed due to R’s absence - Applicant subsequently made detailed response to issues in audit report - Applicant made redundant as result of restructure – Genuineness of redundancy not disputed – Respondent decided issues raised in audit report would not be taken further as applicant not returning to work – Applicant raised personal grievance – Authority found stress genuine however applicant worked under stress therefore condition not apparent to respondent – Found unforeseeable to respondent applicant would suffer psychological harm when assistance offered and applicant maintained feeling “okay” – Found no evidence of bullying by R towards applicant – Found appropriate practice for audit review to be conducted without notifying staff concerned – Found appropriate for respondent to conduct investigation in light of concerns R raised – Found while incumbent on respondent to inform applicant of allegations, R’s absences and applicant’s ill-health contributed to delayed disclosure of allegations to applicant – Found respondent met duties by outlining general issues and then requested meeting to disclose specific details – Found applicant had full opportunity to explain issues raised in audit report – Found respondent conducted separate employment investigation from audit review – Found applicant not suspended and respondent acted in good faith by offering applicant to stay on paid sick leave during investigation – Found although respondent failed to provide applicant results of review, results not sought and applicant no longer employee when results concluded – No disadvantage – PENALTY – Authority found no unjustified disadvantage and no breach of good faith to support penalty claim – Penalty declined – Manager of Public Health Intelligence Unit |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Alliance Freezing Co (Southland) Ltd v NZ Amalgamated Engineering IUW [1989] 3 NZILR 785;Attorney-General v Gilbert [2002] 1 ERNZ 31;Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;McGavin v Aoraki Corporation [1996] 2 ERNZ 114;Wellington Area Health Board v Wellington Hotel etc IUOW [1992] 2 ERNZ 466 |
| Number of Pages | 12 |
| PDF File Link: | wa 156_09.pdf [pdf 38 KB] |