| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 41 |
| Hearing date | 13 Jan 2011 |
| Determination date | 11 March 2011 |
| Member | G J Wood |
| Representation | G O'Sullivan ; N Flint ; P Macdonald |
| Location | Wellington |
| Parties | Davidson v Bledisloe New Zealand Ltd t/a Gee & Hickton Funeral Directors |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by being given final warning and then suspended - Respondent claimed warning justified – Claimed applicant not suspended rather parties unable to agree satisfactory terms for applicant’s return to work - Applicant previously subject to performance related concerns leading to formal warnings - Applicant given written warning for making private telephone calls during work hours, shirking, and returning late from lunch – Found from that point on at least applicant knew if wanted to make personal calls during work hours required to seek permission - Applicant informed that for next six months, any further instances of behaviour would result in further disciplinary action - During that period applicant had cancer scare - Applicant made private phone calls on two further occasions – Investigation meeting held and applicant issued with final written warning to last for nine months – Warning stated applicant’s employment would be terminated if were further instances of specified misconduct - Respondent’s general manager claimed saw applicant making personal phone call – Applicant invited to disciplinary meeting – Applicant raised unjustified disadvantage grievance in relation to final warning – At meeting applicant accepted breached prohibition on using phone without permission – Parties agreed applicant to remain absent from work on pay until issues resolved – Respondent sought all relevant health documentation from applicant and advised until documents received and decision reached applicant to remain on leave – Respondent considered health issues raised doubts as to whether applicant should return to work – Applicant noted medication made him unnecessarily anxious and had had to be changed and that caused him to wrongly phone daughter – Applicant submitted in circumstances disciplinary process not appropriate and applicant wished to return to work – Respondent noted applicant had not raised issue at time – Respondent would allow applicant to return to work provided two requirements met being full medical assessment confirming applicant fit to return and applicant signing protocol stating further misconduct over next nine months would result in dismissal – Applicant agreed to medical assessment and assessment found him fit to return to work – Parties unable to reach agreement on signing protocol and were various delays – Applicant’s pay stopped and applicant not allowed to return to work - Mediation unsuccessful – Respondent resumed disciplinary process – Parties agreed wording of protocol but respondent sought extra clause stating all claims and legal action be withdrawn and would be no payment of lost wages – Applicant did not agree to clause – Parties unable to resolve issue - Authority found final warning justified – Found applicant on clear warning for misconduct and knew not entitled to make calls without permission – Found later explanation about cancer scare did not make warning unjustified as had to be assessed at time warning given – Found respondent’s actions those of fair and reasonable employer - Found respondent’s actions of stopping applicant’s pay and refusing to allow him to return to work not actions of fair and reasonable employer – Found respondent knew applicant arranging independent medical assessment – Found respondent knew applicant would regard any misuse of phone as grounds for instant dismissal – Found once medical assessment completed knew applicant fit to return to work – Found respondent had other options than refusal to allow applicant to return to work – Found respondent’s actions disadvantaged applicant’s employment and were unjustified – Unjustified disadvantage - Remedies – No contributory conduct – Applicant entitled to two months arrears of wages – Quantum to be determined by parties – Authority accepted that applicant having pay cut while had to leave town to attend to dying mother financially embarrassing – Authority accepted applicant’s wife evidence that impact of matters on applicant terrible and he had sleepless nights and was hard to get him to be positive after years of working - $5,000 compensation appropriate |
| Result | Application granted (unjustified disadvantage - suspension) ; Application dismissed (unjustified disadvantage - final warning) ; Arrears of wages (Quantum to be determined) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Radio NZ Ltd v Snowdon [2003] 1 ERNZ 12 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Wellington_41.pdf [pdf 42 KB] |