| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 305/10 |
| Hearing date | 29 Mar 2010 - 1 Apr 2010 (4 days) |
| Determination date | 29 June 2010 |
| Member | M Urlich |
| Representation | K Beck, K Hoyle ; A Scott-Howman, M Berryman |
| Location | Auckland |
| Parties | Alo v New Zealand Customs Service |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant suffered major depressive condition, post traumatic stress disorder and alcohol abuse following deployment to post boxing day tsunami relief effort where exposed to traumatic scenes and experiences – Applicant claimed events leading to disciplinary investigation would not have occurred if respondent had provided appropriate and necessary support after deployment – Respondent disputed any causative link between actions and ill health applicant continues to suffer – Applicant conducted hand over to incoming post holder – Incoming post holder wrote detailed report outlining serious concerns about applicant’s behaviour and impact of behaviour on reputation of respondent – Respondent advised applicant investigating concerns – Report compiled and set out applicant’s conduct amounted to serious misconduct warranting dismissal – Report outlined mitigating factors including matrimonial issues and trauma associated with involvement in aftermath of tsunami but did not excuse seriousness of applicant’s conduct – Applicant requested medical report be provided before releasing report – Applicant diagnosed as suffering from major depressive episode – Respondent advised of medical diagnosis – Respondent considered mitigating factors to dismiss on notice instead of without notice – Applicant did not participate in disciplinary investigation due to ill health – Respondent argued applicant had fair opportunity to participate in process if wished to – Authority found applicant did not have fair opportunity to provide response to serious allegations – Found dismissal not action of fair and reasonable employer – Found applicant’s ill health relevant consideration in inquiry – Found respondent gave little or no weight to medical diagnosis – Respondent sought no further information to understand how applicant’s ill health could have contributed to conduct which gave rise to disciplinary inquiry – Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – HEALTH AND SAFETY – Applicant argued unjustifiably disadvantaged by respondent failing to provide and maintain a healthy and safe workplace and breaching policies – Found respondent had duty to take reasonable steps to safeguard applicant’s mental health – Respondent argued offered applicant trip home to New Zealand and facilitated psychologist visit – Found inferred from respondent’s steps that aware of risk to psychological health – Found respondent failed to take reasonable steps to avoid or minimise risk to applicant associated with involvement with tsunami relief effort – Found existing support services involved intermittent contact with New Zealand base manager, administrative support and relationships within New Zealand Embassy in Bangkok – Found existing support services involved no psychological expertise – Found respondent breached duty to applicant – Respondent argued events in applicant’s personal life overtook impact of post tsunami deployment – Found no evidence to support claim – Found offers of counselling too late – Found respondent failed to supply applicant with safe and healthy workplace and failed to eliminate risk of mental harm – REMEDIES – No contributory conduct – Applicant claimed $164,027 reimbursement of lost wages based on medical evidence unable to return to full time employment until between August and November 2010 – Found reimbursement of lost wages appropriate – Applicant sought compensation for unjustified actions and unjustified dismissal – Found circumstances of case exceptional – Found devastating impact on applicant following post tsunami deployment – Applicant described as ‘broken man’ – $40,000 compensation appropriate – Found $21,507 compensatory damages for medical treatment appropriate – Found $20,000 general damages for breaches of contractual duty appropriate – Penalty not appropriate as applicant compensated for breaches – Found respondent should develop policies for staff exposed to circumstances or material which had potential to cause psychological harm – Customs Liaison Officer |
| Result | Application granted ; Reimbursement of lost wages ($164,027.50) ; Reimbursement of medical treatment costs ($21,507.25) ; General damages ($20,000) ; Compensation for humiliation etc ($40,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s162;Health and Safety in Employment Act 1992 |
| Cases Cited | AG v Gilbert [2002] ERNZ 31 |
| Number of Pages | 18 |
| PDF File Link: | aa 305_10.pdf [pdf 58 KB] |