| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 40/10 |
| Hearing date | 19 Nov 2009 |
| Determination date | 26 February 2010 |
| Member | P R Stapp |
| Representation | G O'Sullivan, N Flint ; Y Summers |
| Location | Wellington |
| Parties | Smith v Life to the Max Horowhenua Trust |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Abandonment - Tensions developed in workplace between applicant and Team Leader (“T”) - Two staff members complained applicant abusive - T claimed tried to arrange four meetings with applicant to deal with issues - No meetings took place - To encourage applicant to attend meeting applicant, suspended on full pay - Number of allegations of serious misconduct made - Applicant made accusations of abuse and bullying by T - Disciplinary meetings did not resolve issues - Respondent did not investigate applicant’s complaints as believed no prima facie case - Applicant did not return to work as felt warning unfair and work environment unsafe - Respondent concluded applicant abandoned employment and stopped pay - Authority found suspension breached suspension provision in applicant’s employment agreement - Found no consultation prior to suspension - Found reason for suspension to get applicant to meet with respondent - Found suspension put applicant’s employment in jeopardy - Suspension unjustified - Authority found final warning unjustified - Found applicant not told final warning a possible outcome and no opportunity to comment on alternatives - Found issues performance rather than misconduct related and should have been treated as such - Found respondent’s failure to deal properly with applicant’s complaints meant employment terminated at respondent’s initiative when unfairly considered applicant abandoned employment - No abandonment of employment - Dismissal unjustified - Remedies - No contributory conduct - Global award of remedies to cover unjustified disadvantages and unjustified dismissal - No award of lost wages for suspension as applicant on full pay - Applicant did not sufficiently mitigate loss to warrant award of six months lost wages claimed - Three months reimbursement of lost wages awarded - Applicant hurt and upset and suffered financial impact - $10,000 compensation appropriate - Counsellor Educator |
| Result | Applications granted ; Reimbursement of lost wages ($11,750) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s128 |
| Cases Cited | E N Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97;Lwin v A Honest International Co Ltd [2003] 1 ERNZ 387;Pitolua v Auckland City Council Municipal Abattoir and Auckland & Tomoana Freezing Works etc IUOW [1992] 1 ERNZ 693 ; [1992] 1 NZLR 6 |
| Number of Pages | 11 |
| PDF File Link: | wa 40_10.pdf [pdf 45 KB] |