| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 146/10 |
| Hearing date | 26 Aug 2009 - 28 8 Aug 2009 (3 Days) |
| Determination date | 26 March 2010 |
| Member | K J Anderson |
| Representation | R Young (in person) ; M Beech, A Scott |
| Location | Tauranga |
| Parties | Young v Bay of Plenty District Health Board |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant’s manager (“W”) and co-worker raised concerns about applicant’s communication and behaviour – Respondent also began to have concerns about applicant’s performance, specifically that work not up to required standard, not undertaking reasonable requests, and lack of focus on work – Applicant placed on performance management plan – W continued to have concerns about applicant’s behaviour including bullying, intimidation and harassment, including sexual harassment – Respondent engaged independent consultant to investigate matter – Consultant produced report identifying number of areas of concern – At same time applicant filed report alleging verbal aggression and abuse and claiming being victimised and bullied and was unsafe – Applicant informed respondent conducting investigation into complaints made against applicant and would also deal with applicant’s complaints – Meeting held with applicant and his representative - Applicant suspended on full pay – Draft investigation report prepared and sent to applicant - Meeting held where applicant given opportunity to respond to draft report – Applicant responded in writing after meeting – Applicant informed respondent still intending to recommend dismissal – Applicant informed who final decision maker would be and given opportunity to meet with them – Following meeting decision maker concluded employment relationship broken down to point respondent had lost trust and confidence in applicant - Applicant summarily dismissed - Applicant claimed no justification provided for suspension at time and received no warning would be suspended – Authority found while those factor might have rendered suspension unjustified were mitigating circumstances – Found W felt intimidated and unsafe in applicant’s presence – Found applicant claimed being victimised, bullied and unsafe – Found in those circumstances respondent had no option but to promptly alleviate situation and move to suspend applicant – Suspension justified – Found even if suspension not justified difficult to see how applicant disadvantaged by being removed from detrimental environment alleged working in - No unjustified disadvantage - Authority found no procedural deficiencies in dismissal process – Found applicant made fully aware of allegations against him and given appropriate opportunity to respond – Found applicant’s continual and cumulative words and actions caused severe disharmony in workplace – Found applicant’s words, actions, poor performance and general behaviour were such that dismissal was action available to respondent as fair and reasonable employer - Dismissal justified - Health promoter |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A |
| Cases Cited | Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;Wellington District Hotel etc IUOW v Hawthorne (BH & DG) (t/a Kapiti Convalescent Home) [1988] NZILR 352 |
| Number of Pages | 15 |
| PDF File Link: | aa 146_10.pdf [pdf 56 KB] |