| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 199/09 |
| Hearing date | 9 Jun 2009 |
| Determination date | 20 November 2009 |
| Member | H Doyle |
| Representation | J Beck ; E Robinson |
| Location | Dunedin |
| Parties | A v B Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent dismissed applicant following investigation into allegations applicant requested co-workers view applicant’s genitalia, caused undue stress to co-workers, and made inappropriate physical contact with resident - Applicant claimed conduct did not occur, and investigation unfair due to predetermination, lack of open mind and failure to consider relevant evidence – Applicant suspended during investigation into formal complaints made by co-workers – Authority found no separate unjustified disadvantage claim so suspension to be considered as part of overall dismissal process – Found process not ideal but respondent’s initial and significant concern was applicant’s wellbeing – After two disciplinary meetings, respondent found insufficient evidence of allegations applicant harassed staff by text message and threatening self harm – Respondent concluded serious misconduct in three allegations above – Applicant dismissed – Regarding allegation applicant requested co-workers view genitalia, Authority found respondent gave insufficient weight to text message exchanges in terms of motives co-workers may have had for making allegations – Found respondent put little weight on fact applicant raised genitalia as medical issue, not intended to offend – Found circumstances under which applicant allegedly asked co-worker to inspect genitals not properly weighted and considered – Found more information available to be considered in text messages which was not properly weighted in preferring credibility of co-workers over applicant – Found conclusion on allegation not sustainable because investigation not that of fair and reasonable employer – Authority also found investigation into co-worker’s allegation applicant made physical contact with patient not that of fair and reasonable employer – Found respondent did not establish clearly whether applicant recalled cleaning resident with co-workers, but proceeded to investigate on basis applicant accepted being present – Found respondent did not properly weight and consider inconsistencies in description of conduct and delay in reporting conduct – Found respondent did not undertake further questioning in light of further statements provided – Found matters fundamental to full and fair investigation and raised serious doubts conclusion conduct occurred justified – Final allegation that applicant put undue stress on other staff – Authority found three co-workers received counselling – Found given conclusions regarding other allegations, finding that allegation was fairly and fully investigation and finding of serious misconduct could not be sustained – Found investigation not that of fair and reasonable employer – Found raised serious doubt that conduct occurred and that finding of serious misconduct justified - Summary dismissal unjustified - REMEDIES – Authority not satisfied on balance of probabilities that alleged conduct occurred – Found no contributory conduct – Applicant claimed too upset to look for work immediately following dismissal – Authority found evidence attempted to find new employment – Applicant entitled to reimbursement of lost wages for period just under six weeks – Found applicant very upset made out to be ‘perverted and sick’ – Found applicant young and trusting person – Authority considered fact applicant obtained new position quickly - Found $7,000 compensation appropriate - Rest home hospital aide |
| Result | Application granted ; Reimbursement of lost wages (approx 6 weeks)(quantum to be determined) ; Compensation for humiliation etc ($7,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Graham v Airways Corp of NZ [2005] ERNZ 587;Honda NZ Ltd v NZ Boilermakers ETC IUW [1991] 1 NZLR 392;Tawhiwhirangi v Attorney-General in respect of Chief Executive of Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 21 |
| PDF File Link: | ca 199_09.pdf [pdf 73 KB] |