| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 334A/10 |
| Hearing date | 11 Aug 2010 - 12 Aug 2010 (2 days) |
| Determination date | 26 August 2010 |
| Member | M B Loftus |
| Representation | L Black ; K Burson, S Trenwith |
| Location | Auckland |
| Parties | Rathnayaka v Lab Tests Auckland Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - RAISING PERSONAL GRIEVANCE - Applicant failed to follow small sample standard operating procedure - No formal disciplinary action taken - Less than two months later applicant again failed to follow small sample standard operating procedure - Applicant issued with written warning - Nine days later applicant again failed to follow small sample standard operating procedure - Matter dealt with informally - Two days later respondent alleged applicant failed to perform daily maintenance task of cleaning a machine and then deliberately tried to deceive respondent by falsely completing daily maintenance log - Failure to perform task resulted in 200 tests having to be repeated and clients advised results may be in error - Dispute between parties as to which machine not cleaned and therefore whether log falsified - Meeting held to discuss issue in which respondent stated considering dismissal as lost trust and confidence in applicant’s ability to safely operate in role - Human Resources Manager suggested transfer to another position instead of dismissal - Applicant accepted transfer to position of Work Room Assistant and signed new employment agreement - Applicant wished to return to laboratory work as concerned work permit required her to perform laboratory work and was concerned about application for permanent residency - Applicant’s two attempts to return to laboratory work denied by respondent - Applicant informed Work Room Assistant position to be disestablished - Applicant made redundant - Applicant sought to challenge removal from Medical Laboratory Technician - Found applicant did not raise personal grievance about removal until over 200 days had passed which was considerably longer than 90 days - Parties disputed whether applicant’s removal from Medical Laboratory Technician position was dismissal or not - Authority found events did not constitute dismissal - Found dismissal was sending away and absolute ending of employment relationship - Found applicant continued to be employed by respondent - Found events could constitute unjustified disadvantage - Found did not actually matter if was dismissal or disadvantage as 90 day problem remained - Applicant claimed not aware had potential grievance at time - Authority found applicant had enough knowledge to pursue matter if chose to - Found accepted and performed Work Room Assistant role - Found applicant did not act until received letter from Immigration about work permit and permanent residency - Found grievance raised out of time - Found application to raise grievance out of time required exceptional circumstances - Applicant claimed circumstances exceptional and just and fair to allow grievance to proceed - Applicant claimed did not comprehend what had occurred due to English not being first language - Authority found had already found applicant did know what had occurred - Found applicant’s command of English good enough - No exceptional circumstances - Application dismissed - Medical Laboratory Technician |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s114;ERA s114(1);ERA s114(3) |
| Cases Cited | Rathnayaka v Lab Tests Auckland Ltd unreported, M Loftus, 26 Jul 2010, AA 334/10;Robertson v IHC New Zealand Inc [1999] 1 ERNZ 367;Wyatt v Simpson Grierson [2007] ERNZ 489 |
| Number of Pages | 14 |
| PDF File Link: | aa 334a_10.pdf [pdf 46 KB] |