| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 6B/10 |
| Hearing date | 18 Mar 2010 |
| Determination date | 28 May 2010 |
| Member | J Crichton |
| Representation | J Goldstein ; P Zwart |
| Location | Christchurch |
| Parties | Service v Young Men's Christian Association of Christchurch Inc |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant summarily dismissed after respondent’s inquiry found applicant failed to disclose to previous CEO (“T”) alleged rape of client by volunteer tutor - Disciplinary investigation based on events 20 months prior - Applicant claimed took proper steps to validate programme and immediately cancelled balance of course and acted in accordance with wishes of complainant when informed of allegation - Claimed had informed T and matter appropriately dealt with at time - Found when learnt of rape allegation respondent’s current CEO (“S”) talked to applicant’s subordinate first before talking to applicant - Found subordinate had uncertain relationship with applicant - Found was important applicant had opportunity to defend herself without subordinate potentially earlier prejudicing decision maker - Found even from S’s first conversation about matter formed totally different view about nature and seriousness of events to applicant - S contacted T, who had subsequently moved overseas, to discuss matter - Contact between S and T limited to one telephone call and email - T provided affidavit but received after dismissal - Found exchange between T and S so equivocal as to be completely unhelpful - Found at very least respondent should have engaged formally with T if sought to place reliance on T’s testimony - On basis of T’s recollections of discussions with applicant respondent formed view applicant had not informed T about rape allegation - Found respondent placed little weight on applicant’s testimony had dealt with issue at time and T satisfied with actions taken - Respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Found applicant did not apply level of skill and care to arranging course as would have been expected from someone with her level of seniority and experience - Found 50 percent contributory conduct - Applicant sought $30,000 compensation for dismissal - Found $30,000 compensation not warranted in circumstances but without contribution finding would have awarded $18,000 - Taking contribution into account $9,000 compensation appropriate - Applicant claimed lost $19,247 in lost wages - Applicant also sought exercise of discretion to add compensation for loss of benefits of employment to reimbursement of lost wages - Found in all circumstances appropriate to fix global gross sum for reimbursement of lost wages and then reduce it for contributory conduct - Found $20,000 appropriate sum reduced to $10,000 for contributory conduct - UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by suspension - Applicant claimed decision to suspend predetermined - S claimed prepared to hear what applicant had to say and made that clear to applicant - Found purpose of suspension to allow respondent to carry out unfettered inquiry - No unjustified disadvantage - COUNTERCLAIM - Breach of Contract - Penalty - Respondent’s counterclaim for penalties for alleged breaches of employment agreement and duty of good faith dismissed - Education Director |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($20,000 reduced to $10,000) ; Compensation for humiliation etc ($18,000 reduced to $9,000) ; Applications dismissed (Unjustified disadvantage)(Counterclaim) ; Disbursements in favour of applicant ($70)(Filing fee) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Petersen v Board of Trustees Of Buller High School [2002] 1 ERNZ 139 |
| Number of Pages | 18 |
| PDF File Link: | ca 6b_10.pdf [pdf 54 KB] |