| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 303 |
| Hearing date | 24 Mar 2011 - 25 Mar 2011 (2 days) |
| Determination date | 12 July 2011 |
| Member | R A Monaghan |
| Representation | A Schirnak ; S Dench |
| Location | Whangarei |
| Parties | Lewers v Northland District Health Board |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably suspended by respondent – Applicant decided vaccinating at school should commence without crash kit which contained emergency equipment should someone have adverse reactions to vaccination – Applicant informed Senior Public Health Nurse (“T”) that vaccinations began without crash kit – Authority found commencing vaccinations without crash kit serious matter and not in accordance with fundamental and well-known requirements – Found applicant’s actions so plainly in breach of procedure, expected Nurse Manager (“F”) to be seriously concerned – Applicant asked T not to report incident – T reported incident to F – Colleague (“A”) returned with crash kit – No student suffered adverse reaction before crash kit arrived – A claimed did not think applicant would proceed without crash kit – Applicant attended disciplinary meeting – Applicant took full responsibility for incident and apologised – Applicant and colleagues suspended on full pay pending investigation – General Manager (“B”) concluded suspension appropriate due to serious breach of safety and concerned nurses would be distracted pending investigation – B also concerned applicant tried to find out who reported incident and claimed applicant could be intimidating – A claimed applicant tried to make contact about incident – Applicant contacted T about reporting incident – Exchange with T not taken into account when decision to suspend made as occurred afterwards – Whether suspension procedure in accordance with policy – Found scope of meeting limited and alternatives to suspension not canvassed – Found policy provided for two circumstances in which suspension could be used and arguably suspension limited to two circumstances – Found presence of applicant in workplace not detrimental to investigation – Found only third limb of second circumstance met but only very limited enquiry into possibility of alternative duties carried out – Found suspension unjustified – REMEDIES – Significant contributory conduct – $3,000 compensation appropriate – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant attended disciplinary meeting – Applicant prepared apology letters – Applicant claimed B, F and Human Resources Advisor unmoved by what applicant had to say – B claimed due to applicant’s seniority problem not one of lack of training or need for supervision – B viewed incident seriously and claimed applicant tried to cover it up by asking T not to report incident – B did not accept any action or inaction of T’s excused applicant – Applicant dismissed – Expert witness claimed risk assessment carried out when standards regarding crash kit set so no scope for further risk assessment such as one applicant claimed carried out – Applicant completed training and audit process and record of assessment referred to knowledge of existence of written protocol and need for crash kit – Applicant claimed mitigating factors not listened to or considered – Found explanation for conduct unacceptable and respondent entitled to form conclusion – Found evidence of predetermination insufficient to call into question fairness of B’s decision to dismiss – Applicant claimed F adversely disposed towards applicant – Found F neither investigator nor decision-maker – Found F’s actions did not support applicant’s fear of F so as to ask T not to report incident – Applicant claimed disparity between treatment of applicant and colleagues – Found no disparity of treatment in relation to all allegations – Applicant claimed uncertain about purpose of disciplinary meeting – Found if applicant unaware of purpose of meeting, not because of failure to bring it to applicant’s attention – Found nothing in applicant’s concern about not being aware of B speaking to training advisor – Found desirable to consult Nursing Director about dismissal – Found applicant’s actions of kind that contributed to respondent’s loss of trust – Found flaws in disciplinary procedure but dismissal action of fair and reasonable employer – Dismissal justified – Health Nurse |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($3,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Chief Executive Officer Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;Samu v Air New Zealand Limited [1995] ERNZ 636;Sutherland v Air New Zealand Limited [1993] 2 ERNZ 386;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 27 |
| PDF File Link: | 2011_NZERA_Auckland_303.pdf [pdf 71 KB] |