| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 377 |
| Hearing date | 7 Dec 2010 - 8 Dec 2010 (2 days) |
| Determination date | 30 August 2011 |
| Member | R A Monaghan |
| Representation | H Waalkens ; S Wilson |
| Location | Auckland |
| Parties | Conaglen v The Vice Chancellor University of Auckland |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s determination that complaint about applicant disclosed misconduct – Respondent claimed conducted full and fair investigation into complaint and justified in finding misconduct – Students’ claimed applicant told students to nominate shyest member of tutorial to be ‘doctor’ in role playing exercise and applicant bullied and humiliated chosen student – Students’ claimed applicant criticised ‘doctor’ when began to cry and later said ‘Kiwi girl’ would not have cried – Students’ written complaint given to Dean of Faculty of Medical and Health Sciences (“M”) – M formed preliminary view that matter was case of serious misconduct – M informed respondent of complaint and respondent appointed delegate (“D”) for purposes of disciplinary procedure – Applicant claimed did not intend to be unfair, offensive, bullying or culturally insensitive and wanted to replicate clinical practice and situational experiences as much as reasonably possible – D found applicant had made culturally insensitive statements to students – D accepted applicant did not intend to bully or humiliate students but found conduct likely to have had that effect – D concluded applicant’s teaching style unacceptable and amounted to misconduct – D found appropriate disciplinary action was formal written apologies, written warning and evaluation and reporting procedure – Applicant claimed was wrong to characterise complaint as serious misconduct, respondent breached disciplinary procedures, there were other significant process defects and irregularities, and the substantive decision and penalty decision were unreasonable – Authority found collective employment agreement (CEA) had different procedures for addressing allegations of serious misconduct and misconduct and by starting the procedure under one head the parties were obliged to stick to it – Found not open to D to conclude applicant’s conduct amounted to misconduct when initially characterised as serious misconduct – Found reasonable employer would have obtained more specific information about applicant’s alleged conduct before making preliminary characterisation of conduct – Found disciplinary procedure fatally flawed – Found applicant lost opportunity to have concerns raised at relatively lower and less formal level contemplated by CEA – Found loss of opportunity significant and unfair to applicant – Found facts did not indicate failure to raise concerns in timely way – Found likely that applicant made alleged comments, consistently drew attention to ‘doctor’s’ poor performance and sought elicit critical comments from students – Found nature of references applicant provided to D did not change nature and quality of conduct during tutorial – Found D’s decision not related to use of role play but to conduct that occurred during tutorial – Found applicant unnecessarily destructive in way negative aspects of ‘doctor’s’ performance were addressed – Found applicant’s technique of requiring shyest student to play ‘doctor’ unacceptable – Found unacceptable for applicant to tell ‘doctor’ unprofessional to cry – Found D exceeded delegated authority in imposing penalties – Unjustified disadvantage – REMEDIES – Found contributory conduct – Found applicant’s conduct at tutorial contributed to situation that gave rise to grievance – Found applicant experienced strong feelings of humiliation and upset – $10,000 compensation appropriate – Associate Professor |
| Result | Application granted ; Compensation for humiliation etc ($10,000)(reduced for contributory conduct) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Gorman v General Distributors Ltd t/a Countdown Johnsonville unreported, D Asher, 3 January 2007, WA1/07;Northern Distribution Union v BP Oil [1992] 3 ERNZ 483 |
| Number of Pages | 24 |
| PDF File Link: | 2011_NZERA_Auckland_377.pdf [pdf 67 KB] |