| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 6 |
| Hearing date | 25 Jun 2010 |
| Determination date | 11 January 2011 |
| Member | Y S Oldfield |
| Representation | C Blomkvist ; R Gordon |
| Location | Auckland |
| Parties | Callaghan v The Proprietors, Whareroa Station Inc |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant hired as shepherd at station – Station had two other permanent employees; farm manger (“L”) and farm manger’s son (“A”) – Applicant and A in relationship and lived in farm accommodation together – Applicant and A aged 18 and 19 respectively - Relationship between applicant and A ended – Applicant moved into single quarters elsewhere on farm – Applicant claimed over next few months A’s behaviour towards her made her feel unsafe – Incident occurred which led applicant to complain to Police – No charges laid and applicant and A cautioned about behaviour – Applicant’s doctor authorised two weeks sick leave - Applicant’s mother wrote to respondent alleging A bullying and sexually harassing applicant – Respondent advised matter should be addressed through L – Applicant claimed attempts to do that unsuccessful – Applicant again wrote to respondent setting out specific allegations and asserting L on notice of concerns, had told A “not to bother” applicant but that had not stopped behaviour - Respondent replied would conduct full investigation – In meantime applicant given written warning for leaving gate open thereby putting stock at risk – Applicant denied left gate open – Following warning applicant’s representative wrote to respondent advising giving formal notice of personal grievance and suggesting applicant be placed on paid leave until matter resolved - Applicant placed on paid leave – Applicant not staying at station but her dogs were and so applicant continued to visit station to feed and exercise dogs – Applicant wrote to respondent complaining about length of time investigation taking – Respondent advised matters to be considered at next board meeting and applicant’s leave extended until then – Authority found investigation into applicant’s allegations needed to occur without delay and respondent obliged to keep open mind – found that did not occur - Found in absence of full investigation difficult to establish whether substance to applicant’s allegations – However, one undisputed event occurred where very late at night applicant woken up by A repeatedly banging on windows – Found applicant in vulnerable position as by herself with no close neighbours other than L and A - Authority satisfied applicant established unjustifiably disadvantaged by harassment from A and in relation to respondent’s failure to investigate and address complaints in timely fashion - Found applicant given written warning without being informed of alleged wrong doing or opportunity to put her view - Warning unjustified - UNJUSTIFIED DISMISSAL – Following board meeting respondent sent applicant letter stating applicant to be stood down without pay until matter resolved – Applicant required to remove herself, dogs, and belongings from station by specified date and not to return without authority from L - Respondent took no further initiative to report on or address applicant’s complaints or any other aspect of employment relationship problems – Applicant never returned to work at station - Applicant claimed letter amounted to dismissal – Respondent claimed letter not dismissal but was justifiable suspension – Authority found had respondent followed up letter claim employment not ended would be more credible – Found applicant never advised what would take to return to work nor what respondent intended to do next – Found employment terminated at respondent’s initiative – Found applicant dismissed and dismissal unjustified - REMEDIES – No contributory conduct - Authority satisfied applicant contributed to acrimonious relationship between herself and A – However, found did not contribute to respondent’s failure to follow up on complaint – Found in absence of any inquiry or fair procedure made it impossible to determine if warning letter had substance – Therefore Authority unable to conclude applicant contributed to situation giving rise to warning – Applicant sought $5,000 compensation for unjustified disadvantage - Authority satisfied applicant very distressed by difficult working circumstances and delays in getting appropriate response to complaints - $5,000 compensation appropriate - Applicant sought $10,000 compensation for unjustified dismissal – Found while abrupt nature of termination came as shock by that stage applicant saw limited future at station – Found applicant more upset by manner of dismissal than dismissal itself - $5,000 compensation appropriate - Authority satisfied applicant made attempts to mitigate loss – Three months reimbursement of lost wages awarded less amount earned through casual work - ARREARS OF HOLIDAY PAY – Applicant sought unpaid holiday pay – Respondent had offset holiday pay against paid leave applicant placed on – Found correspondence form applicant’s representative noted understanding paid leave would not be treated as annual holidays – Found no evidence respondent refuted that or signalled planned to treat leave as holidays – Found respondent could not now offset outstanding holiday pay against paid leave - Respondent to pay applicant outstanding holiday pay - Shepherd General |
| Result | Applications granted ; Reimbursement of lost wages ($7,000) ; Compensation for humiliation etc ($5,000)(Unjustified dismissal) ; Compensation for humiliation etc ($5,000)(Unjustified disadvantage) ; Arrears of holiday pay ($1,144.62) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Auckland_6.pdf [pdf 31 KB] |