| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 384 |
| Hearing date | 22 Jun 2011 |
| Determination date | 07 September 2011 |
| Member | R Larmer |
| Representation | A Singh ; A Tiatia |
| Location | Hamilton |
| Parties | Sigglekow v Waikato District Health Board |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed dismissal justified as applicant left shift early without prior notification or authorisation and slept whilst on duty – Applicant suffered heart attack and undertook gradual return to work – Associate Charge Nurse (“M”) discovered applicant had left shift early without completing hand-over protocols – M discussed incident with applicant and completed incident report form but did not deal with it as disciplinary concern – Line manager (“L”) was told staff had twice found applicant asleep on duty – L claimed applicant accepted had been sleeping on duty – L claimed staff who had reported applicant were not prepared to make formal complaint and so appropriate to address matter informally – L took no notes of discussion – M found applicant resting – M took no action regarding incident – M was told applicant had left work early and left colleague (“V”) on own – V provided written complaint – Clinical Nurse Director (“E”) advised M and Service Manager (“A”) that applicant’s conduct potentially breached work standards – A concluded applicant’s conduct was of serious nature and sent applicant letter containing allegations of serious misconduct and scheduled disciplinary meeting – Applicant claimed left shift early because felt sick and had advised V and another colleague (“F”) – Applicant claimed gave keys to drug cabinet to F who was in work area and V was happy for applicant to leave early – Applicant denied sleeping on duty but admitted resting – A contacted F but F could not recall anything – E advised A that applicant’s conduct had breached work standards and advocated dismissal as appropriate outcome – A never put alleged breach of work standards or potential outcome to applicant to respond to – A concluded applicant was not so ill that could not have obtained authorisation prior to leaving work – A concluded allegation regarding hand-over protocols not established – A concluded applicant had been sleeping on duty which was negligent and posed risk to staff – A considered whether final written warning appropriate but decided it would not manage applicant’s attitudes which A believed were contrary to fundamental nursing practice – A considered whether applicant’s actions resulted from ill health but concluded they were not – Applicant dismissed – Authority set out requirements for amended statutory justification test under s103A Employment Relations Act 2000 – Found respondent required to show carried out full and fair investigation which disclosed conduct a fair and reasonable employer could regard as serious misconduct – Found respondent required to show dismissal was a response that could be taken by a fair and reasonable employer in all the circumstances at the time dismissal occurred – Found A had material available that indicated further inquires were required – Found respondent’s investigation was insufficient – Found applicant did not have opportunity to respond to concerns that were regarded as fundamental to decision to dismiss because respondent never raised them with applicant – Found without making further inquiries of V and applicant, respondent did not have sufficient information to properly assess applicant’s explanation about sleeping on duty – Found A’s belief that applicant knew of requirement to seek authorisation from manager before leaving early was unreasonable as it contradicted instruction M had given to applicant which A knew of – Found respondent did not genuinely consider applicant’s explanation about sleeping on duty – Found respondent breached good faith obligations as failed to provide applicant with relevant information – Found respondent failed to properly communicate to applicant expectations regarding leaving work early which led applicant to reasonably believe the procedure applicant adopted was acceptable – Found respondent impliedly condoned applicant’s resting or sleeping at work by failing to take appropriate remedial action over previous instances of applicant resting or sleeping on duty – Found respondent failed to comply with own work policy on disciplinary action as did not evaluate all relevant facts before commencing disciplinary action – Found applicant’s personal circumstances were not properly considered because A made no attempt to evaluate applicant’s health situation as it related to work duties – Found respondent was inconsistent in dealing with similar incidents of alleged serious misconduct which was not taken into account by respondent – Found way respondent considered highly prejudicial information was unfair to applicant – Found defects in respondent’s process were not minor and all resulted in applicant being treated unfairly – Dismissal unjustified – REMEDIES – Found applicant had been sleeping on duty which was highly blameworthy conduct as it created unnecessary risk for residents and other staff – Found applicant’s stance during disciplinary meeting that it was appropriate to rest with eyes closed on duty was blameworthy conduct as dismissal may not have been outcome if applicant had shown understanding of respondent’s concerns – Found applicant had to shoulder blame for failing to properly manage health issues – Found appropriate to give applicant benefit of doubt around health issues and circumstances involved with sleeping on duty by not reducing remedies – Found no interest appropriate due to applicant’s contribution – Applicant sought reinstatement – Applicant presented no medical evidence – Found reinstatement no longer primary remedy – Found even if applicant was medically cleared to return to work there would be real risk applicant would again be reluctant to inform respondent of any health issues – Found if applicant reinstated respondent would probably have to roster another employee on duty to provide cover which would be an unwarranted obligation – Found applicant did not hold current practising certificate and would likely face difficulties obtaining new one due to working hours – Found reinstatement not practicable – Applicant admitted took no steps to mitigate loss – Found applicant not entitled to full wages as not medically fit to work full time – $3,461 reimbursement of lost wages appropriate – $2,000 compensation appropriate – Registered Nurse |
| Result | Application granted ; Reinstatement declined ; Reimbursement of lost wages ($3,461.55) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s103A(1);ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s125;ERA s125(2);ERA Second Schedule cl11;Employment Relations Amendment Act 2010 s15;Employment Relations Amendment Act 2010 s16 |
| Cases Cited | Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd [1983] ACJ 711;Air New Zealand Ltd v Hudson [2006] ERNZ 415;Air New Zealand Ltd v V [2009] ERNZ 185;Angel v Fonterra Co-operative Group [2006] ERNZ 1080;Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;Chief Executive of the Department of Corrections v Tawhiwhirangi [2007] ERNZ 610;Fuiava v Air New Zealand Ltd [2006] ERNZ 806;Jinkinson v Oceana Gold (NZ) Ltd (No 2) [2010] NZEmpC 102;Salt v Fell [2008] ERNZ 155;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448;Wellington Road Transport IUOW v Fletcher Construction Co Ltd [1983] ACJ 653;X v ADHB [2007] ERNZ 66 |
| Number of Pages | 53 |
| PDF File Link: | 2011_NZERA_Auckland_384.pdf [pdf 137 KB] |