| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 327 |
| Hearing date | 20 May 2011 |
| Determination date | 25 July 2011 |
| Member | V Campbell |
| Representation | A Taylor ; S Franklin |
| Location | Whakatane |
| Parties | Kohunui and Ors v Tuwharetoa Ki Kawerau Health Education and Social Services Charitable Trust |
| Other Parties | McCorkindale, Niao, Te Riini, Herbert, Niao |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicants claimed unjustifiably disadvantaged by respondent – Applicants claimed respondent failed to provide safe workplace and working environment – Office door left open over night and fifth applicant (“H”) sent email to Trust Board members (“members”) reminding of security procedures – Members reminded of security codes and asked to keep codes confidential – H subjected to number of abusive telephone calls by Trust Board’s Chairperson (“S”) – H and fourth applicant (“R”) submitted written complaints and hazard reports about events – Altercation ensued between R, Chief Executive Officer, and S – Applicants claimed when intervened S threatened them with suspension and dismissal – Applicants completed hazard reports – Applicants claimed investigator failed to interview all those present on day of first altercation – Authority satisfied investigator carried out full investigation and did not need to interview everyone as all employees completed incident reports – Found process adopted by respondent regarding complaints fair and reasonable, however delay in investigating inordinate – Applicants received no feedback from respondent about complaints which led to perception applicants’ views not valued and not heard – Applicants claimed physical safety at work under threat – Applicants did not raise issue with respondent so respondent could not address issues – Investigator found serious lack of trust and confidence by Trust employees in members as result of failure to address ongoing concerns about S – S removed as Chairperson before investigator released report – Found applicants’ working environment disadvantageous as applicants never knew when might be subject to verbal attacks by S – Found H subjected to unjustifiable level of abuse – Found S did not deny acted without proper justification when threatened dismissal – Found more likely than not applicants did not believe suspended or dismissed – Applicants claimed member Mr Peri (“P”) threatened applicants if did not show loyalty to respondent could be subject to dismissal – Found P reminded applicants about loyalty and was reasonable statement given emotion present in workplace – Found actions of S disadvantaged applicants in employment – REMEDIES – Found no wages lost as result of personal grievance – $250 compensation each appropriate except H – Found H subjected to verbal abuse and threatened more than once that job in jeopardy – $750 compensation appropriate for H – GOOD FAITH – Applicants claimed decision to implement restructuring breach of good faith – Found no evidence produced in relation to claim – Applicants claimed action by respondent undertaking to attend mediation only to refuse to attend until after investigation into incident was breach of good faith – Found neither party breached good faith as both intent on resolving issues – Found reluctance of respondent to attend mediation initially was because applicants lodged Statement of Problem before providing proper opportunity for respondent to attempt to resolve matters – No breach of good faith |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2000, AC 65/02;Mason v Health Waikato [1998] ERNZ 84;McCosh v National Bank unreported, Colgan J, 13 Sept 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;Te Riini v Tuwharetoa Ki Kawerau Health Education and Social Services Charitable Trust [2011] NZERA Auckland 287 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_327.pdf [pdf 34 KB] |