| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 203/09 |
| Hearing date | 26 May 2009 |
| Determination date | 27 November 2009 |
| Member | P Cheyne |
| Representation | C McNamara, F Fitzsimons ; S Heywood |
| Location | Christchurch |
| Parties | Chisholm v Ministry of Social Development |
| Summary | RAISING PERSONAL GRIEVANCE – 28 years employment – Applicant claimed unjustified disadvantage and breach of contract – Respondent argued grievances not raised in time and did not unjustifiably disadvantage applicant or breach employment agreement (“EA”) – Applicant and husband adopted son (“S”) – Applicant had substantial involvement with police due to S’s behaviour – Applicant employed in respondent’s Adoptive and Information Services Unit (“AISU”) – Authority found applicant’s supervisor (“P”) generally knew of developments with S – P reviewed adoption applications before allocation – P reviewed adoption application from Mr and Mrs B and allocated file to applicant – Conflict in evidence whether applicant objected to file allocation at time – Applicant claimed when discovered Mr B a policeman asked P to allocate file to another social worker but P refused – P argued applicant did not raise any concern about file at time of allocation – Authority found applicant did not object to file allocation during 2003 – Applicant’s work on file resulted in Mr and Mrs B being approved as adoptive parents – S’s behaviour resulted in number of visits to applicant’s house by police from local station – Police searched applicant’s house in December 2004 with warrant to arrest S – Applicant not present during search but claimed told by daughter police particularly interested in family photographs – Applicant claimed did not connect search or police interest in photos with responsibility for B’s adoption file at time – Authority found more likely than not applicant told P about search – While completing further work on B’s file applicant learned Mr B transferred as sergeant to local police station – Applicant sought B’s file be allocated to another social worker – P argued nothing said by applicant expressing genuine concern about working on B’s file in early 2005 – Subsequently, applicant told P co-worker offered to take over file while applicant on annual leave, Mr B transferred to local police station, daughters report during police search, and asked file be reallocated – Applicant argued P refused request arguing Mr B and applicant would be professional and ASIU short staffed – Authority accepted applicant explained to P concerns and request for file reallocation declined – Authority concluded applicant’s discussion with P sometime before leave period but not during supervision session – P agreed co-worker to look after B’s file while applicant on leave – Applicant sought leave be extended further week – Second incident where police visited applicant’s house looking for S – Applicant claimed identified voice of Mr B during visit – Applicant certified as unfit for work by doctor – Respondent’s practice manager (“G”) argued concerned of prospect of long term absence – G met with applicant who explained issues believed causing ill health – Applicant saw doctor again and certified unfit for work with fortnightly then monthly review date – Applicant asked G if could alter duties so did not have to assess adoptive parents – G told applicant unable to agree to change in duties – G arranged for review by occupational medicine specialist – Applicant diagnosed with major depressive disorder – Doctor’s opinion applicant’s problem 10 percent medical and psychiatric, and 90 percent industrial and workplace related – G told applicant could not support medical retirement given report – G told applicant respondent would pay retiring leave and two weeks salary in lieu of notice if applicant provided formal written request to retire – Applicant provided letter and employment ended – Applicant claimed respondent failed to address objection to working on file; breached EA concerning safety; and acted unfairly and unreasonably – Authority found any disadvantage grievance in relation to applicant being required to work on B’s file was out of time – Found might be said respondent disadvantaged applicant by refusing request to be allocated duties other than assessing adoptive parents – Found even if grievance raised in time proceedings would not have been commenced in time – Found s122 Employment Relations Act 2000 (“ERA”) did not assist applicant – Authority concluded no personal grievance as defined by s103(1)(b) ERA properly before Authority – BREACH OF CONTRACT – Applicant claimed respondent breached contractual obligation by requiring work with Mr and Mrs B when personal conflict of interest – Authority found contractual obligation required reasonable steps proportionate to known and avoidable risks – Authority found was risk Mr B as police officer might become involved with S and might compromise applicant in work on B’s file – However, not established any risk applicant might suffer depressive disorder by continuing work on file or that respondent knew or should have known of risk – Found no breach of contract by respondent being failure to take all reasonable steps to provide applicant with safe workplace – Social worker |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s113(1);ERA s114(1);ERA s122;ERa s160(3);State Sector Act 1988 s56(2);Health and Safety in Employment Act 1992 |
| Cases Cited | Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Attorney-General v Gilbert [2002] 1 ERNZ 31 |
| Number of Pages | 14 |
| PDF File Link: | ca 203_09.pdf [pdf 43 KB] |