| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 151 |
| Hearing date | 8 Dec 2010 - 10 Dec 2010 (3 days) |
| Determination date | 06 October 2011 |
| Member | P Cheyne |
| Representation | B Buckett ; S Menzies |
| Location | Christchurch |
| Parties | Moxon v Pathways Health Ltd t/a Pathways |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged through warning issued – Applicant received letter from respondent Regional Manager (“C”) which raised allegations of bullying behaviour towards staff and behaviour which caused unreasonable distress to staff member – Various interpersonal and other difficulties within team existed – Staff members complained applicant caused staff members significant stress, made staff members feel bullied and shamed, gossiped to staff about other staff and continuously left early – Complaint report filled out – Human Resources Advisor (“W”) prepared investigation report and held individual meetings with complainants – C invited applicant to attend meeting with W – Applicant claimed subjected to five hour interrogation, allegations not adequately detailed, reasonable explanations rejected out of hand and targeted with matter already decided – W denied interrogation and denied accusing or judging applicant – Authority accepted applicant found experience gruelling – Found W did not intend to accuse or judge applicant – Found abridged version of report produced so applicant would see fewer specific comments made by identifiable staff members – Found indicated element of pre-judgment at early stage about validity of allegations – C told General Manager (“F”) before disciplinary process started about previous similar allegations – Found F not prepared to let applicant go through each allegation and refute them – Applicant attended disciplinary meeting – Found applicant given ample opportunity to respond to materials that were provided beforehand – Found matters did not progress much beyond stalemate – Respondent provided preliminary view which stated two staff members withdrew complaints – Respondent claimed culture of gossiping, substance to allegation staff members distressed by incidents and applicant accepted behaved in way alleged and now recognised behaviour inappropriate – Respondent claimed unable to determine validity of allegation applicant difficult to work with and staff members reported improvement in trust and confidence between applicant and staff members – Respondent claimed actions individually and collectively amounted to misconduct but not serious misconduct – Applicant received written warning effective for six months – Found respondent did not misrepresent interview notes and no evidence of dishonesty – Found no misrepresentation about complaint report – Found applicant initially received unabridged version of W’s report – Found applicant had no input into W’s report apart from during interview and subsequent exchanges over notes – Found respondent looked to constrain later engagements to bring disciplinary process to end – Found Team Leader’s evidence not deceitful – Found several staff members regretted what developed when expressed concerns – Found respondent entitled to investigate matters – Found no breach of confidentiality by respondent – Found minutes not deliberately recorded inaccurately – Found no bias – Found C did not have any predetermined intent to dismiss applicant – Found no unfairness in W’s manner and process with complainants – Found fair and reasonable employer would not have extended investigation beyond complainants – Found applicant entitled to see W’s interview notes before required to respond to allegations – Found response again sought after notes provided – Found emails that were starting point of C’s concerns about applicant should have been provided to applicant before decision to issue warning made – Found applicant entitled to see notes from interview with complainant who later withdrew complaint – Found communications about accuracy of complainants’ interview notes should have been disclosed to applicant – Found applicant should have been provided with all material prior to meeting with W – Found meeting with W part of disciplinary investigation – Found element of predetermination in respondent’s decision – Found C formed firm views about applicant’s conduct and how it should be addressed prior to discussion with W – Warning unjustified – Found applicant’s employment disadvantageously affected because made less secure – REMEDIES – 10 percent contributory conduct – Found applicant suffered from anxiety and panic attacks – $9,000 compensation appropriate – No award for lost remuneration – BREACH OF CONTRACT – Found respondent breached implied term to treat applicant in fair and reasonable manner – Applicant claimed suffered loss as result of breach – Applicant sought legal costs incurred through disciplinary process – Found legal costs not other money lost under s123(1)(b) Employment Relations Act 2000 – Applicant claimed costs recoverable under normal rules relating to assessment of damages – Authority declined to treat matter as breach of contract – Found legal costs to be dealt with in usual way – Registered Health Professional |
| Result | Application granted (unjustified disadvantage) ; Contributory conduct (10%) ; Compensation for humiliation etc ($10,000 reduced to $9,000) ; Application dismissed (breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s3(a)(v);ERA s4(1A)(c);ERA s101(ab);ERA s143(b);ERA s143(f);ERA s157(d);ERA s162;ERA s174(b)(iii);Privacy Act 1993 |
| Cases Cited | Allan v Ogilvy Wellington Ltd unreported, J Crichton, 24 April 2009, WA 50/09;Binnie v Pacific Health Ltd [2004] ERNZ 438;Harwood v Next Homes Ltd [2003] 2 ERNZ 433;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35;Smith v Air2There.com (2008) Ltd [2011] NZERA Wellington 98 |
| Number of Pages | 33 |
| PDF File Link: | 2011_NZERA_Christchurch_151.pdf [pdf 174 KB] |