| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 452/10 |
| Hearing date | 20 Nov 2009 - 29 Jan 2010 (4 days) |
| Determination date | 20 October 2010 |
| Member | V Campbell |
| Representation | R Alchin ; A Hope |
| Location | Hamilton |
| Parties | Selliman v Te Runanga O Kirikiriroa Trust |
| Summary | UNJUSTFIED DISMISSAL – UNJUSTIFED DISADVANTAGE – Applicant claimed subject to bullying and intimidation which led to being unjustifiably disadvantaged by respondent – Also claimed unjustifiably dismissed – Respondent argued dismissal grievance not raised within 90 day period – Applicant sought to raise dismissal grievance out of time – Applicant claimed subject to bullying, intimidation, and harassment throughout employment – Claimed treatment by certain co-workers led to her becoming unwell and respondent breached obligation to provide and maintain healthy and safe workplace – Authority found common ground certain co-workers believed another employee’s husband should have been appointed to position and not applicant, as applicant did not look Maori enough – Authority satisfied general sense in office co-worker’s behaviour bullying in nature – Applicant raised several complaints with respondent – Applicant raised direct complaint about ongoing racism and bullying by co-workers – Applicant made further complaint regarding disciplinary process – Applicant claimed co-worker used colleague as support person which widened number of people who knew of events – Subsequently, applicant issued with written warning for making inappropriate comments that had potential to bring respondent into disrepute – Warning to be recorded on applicant’s file for 12 months – Authority found given all correspondence between applicant and respondent defied belief respondent did not consider had sufficient information to base response or undertake investigation – Subsequently, respondent called applicant to disciplinary meeting – Respondent advised applicant if refused to attend disciplinary meeting or insisted on bringing support person, actions would be viewed as wilfully refusing lawful and reasonable instruction – Authority found applicant clear with respondent that not refusing to attend, but insisting on having support person present – Subsequently applicant suspended – Applicant required medical assistance when suffered second breakdown upon return to work – Doctor concluded applicant not fit to continue working – Applicant left workplace and did not return due to medical condition – Subsequently applicant’s employment terminated due to medical incapacity – Authority found applicant disadvantaged in employment as result of failure by respondent to investigate and conclude many complaints made by applicant – Found respondent on notice applicant wished to have complaints of bullying investigated and addressed – Found fact matter not addressed large factor contributing significantly to applicant’s sense of distress, feeling unsafe, and decline in health – Found failure to investigate complaints not actions of fair and reasonable employer – Found in relation to warning no evidence material provided to applicant for response – Found respondent’s own procedures for investigating misconduct allegations not followed – Warning unjustified – Found applicant given no prior notice of suspension or opportunity to have input into decision – Found suspension unjustified – Found personal grievance for unjustified dismissal not raised within 90 day period – Found applicant had not established exceptional circumstances for leave to be granted to raise grievance out of time – Remedies – No contributory conduct – Authority took global approach to remedies for unjustified disadvantage claims – Applicant sought payment for periods when on unpaid sick leave – Authority unable to award lost wages as applicant had not quantified losses – Found applicant should be compensated for lack of investigation into complaints, unjustified warning, and unjustified suspension – Found $15,000 compensation appropriate – Career Coach |
| Result | Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($15,000) ; Application dismissed (Unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(a);ERA s103(1)(b);ERA s114(3);ERA s114(4);ERA s115;ERA s120(1);ERA s124 |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Mason v Health Waikato Ltd [1998] 1 ERNZ 84;MacDonald v Health Technology Ltd [1992] 2 ERNZ 735;McCosh v National Bank of New Zealand Limited unreported, Colgan J, 13 September 2004, AC 49/04;NZ Storeworkers etc IUOW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;Quinn v Bank of New Zealand [1991] 1 ERNZ 1060 |
| Number of Pages | 20 |
| PDF File Link: | aa 452_10.pdf [pdf 66 KB] |