| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 274/10 |
| Hearing date | 3 May 2010 - 25 May 2010 (8 days) |
| Determination date | 11 June 2010 |
| Member | A Dumbleton |
| Representation | Dr J Robertson ; S Wilson |
| Location | Auckland |
| Parties | Mendes v The Vice-Chancellor of the University of Auckland |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by way applications for promotion handled over three years – Found respondent’s actions not unjustified – Found applicant not disadvantaged - Found applicant not disadvantaged in last year as promotion to Associate-Professor successful – No unjustified disadvantage - Applicant claimed suffered unjustifiable disadvantage when respondent denied her entitlement to workload relief – Applicant claimed denial of workload relief led to major breakdown in her health requiring two months sick leave – Applicant’s Head of Department (“A”) claimed told applicant to achieve workload relief by rearranging her research programme – Found respondent had no common or universal way of providing workload relief – Found model A used had been implemented before A became Head of Department – Found A did not exercise discretion in arbitrary or unreasonable way – Found reasonable for A to expect applicant to rearrange work schedule to achieve workload relief – Found respondent’s actions justified – No unjustified disadvantage - Authority declined to make declarations sought by applicant - Applicant claimed unjustifiably disadvantaged by initiation of disciplinary procedures in relation to staff travel policies – Found no abuse of procedure – Found no lack of justification - Found no evidence A acted maliciously, arbitrarily or had ulterior motives – Found claim unable to succeed as personal grievance as related to disputed application of provision of employment agreement - No unjustified disadvantage – Applicant made bullying complaint against A – Respondent appointed independent academic staff member (“J”) to investigate complaint – Applicant made number of complaints about investigation process including being forced to attend meeting with J – Applicant dissatisfied with final report into complaint and accused J of breaching respondent’s policy and failing to act responsibly in role as investigator – Applicant claimed respondent breached duty of good faith and failed to be active and constructive in establishing and maintaining productive employment relationship and failed to deal with applicant in communicative and responsive manner - Found no unfairness or lack of Justice in way J investigated complaint – Found investigation of bullying complaint did not lead respondent to act unjustifiably or unlawfully towards applicant - No unjustified disadvantage - Applicant volunteered for temporary vacancy for deputy Head of Department – Applicant’s offer declined – Applicant claimed discriminated against because of gender – A claimed reason for decision because wanted Professor in role as A only Associate Professor and believed needed someone at senior level to help support research decisions – Applicant’s claim assignment of Professor to role arbitrary and unjustified rejected - Found statutory definition of discrimination not met – Found A declined to appoint applicant because in assessing needs for deputy made and applied distinction between staff at level of seniority of Professor and staff below that level – Found applicant in latter class and not victim of discrimination because of gender or for any other unlawful reason – Found making distinction was matter of judgement and that selection for temporary position within A’s discretion - No discrimination - No unjustified disadvantage - Applicant sought payment for ferry ticket in advance of using it – Applicant claimed having previously been reimbursed was told could not claim specific costs against her externally funded research grant – Applicant claimed being discriminated against and funding from external grant being mismanaged – Found respondent’s actions justified – Found respondent not absolutely denying reimbursement of travel expenses but expecting claim to be made after costs incurred and with supporting evidence – No applicant suffered no disadvantage - Found no breach of collective employment agreement - No unjustified disadvantage – Applications dismissed - Associate-Professor |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Contracts (Privity) Act 1982;ERA s103;ERA s103(1)(b);ERA s103A;ERA s105(1)(a);ERA s114;ERA s123(1)(ca);ERA s134;ERA s135(2);ERA s157;ERA s160(3);ERA s161(r);ERA s162 |
| Cases Cited | Elston v State Services Commission (No 3) [1979] 1 NZLR 218;Evans v Gen-i Ltd unreported, D King, 29 Aug 2005, AA 333/05;Menelda v Publicis Mojo Ltd unreported, R Arthur, 19 Dec 2007, AA 403/07;Universe Tankships Inc of Monrovia v. International Transport Workers’ Federation [1983] 1 AC 366;Victoria University of Wellington v Haddon [1996] 1 ERNZ 139 ; [1996] 2 NZLR 409 |
| Number of Pages | 47 |
| PDF File Link: | aa 274_10.pdf [pdf 134 KB] |