| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 153 |
| Hearing date | 28 Jul 2011 - 29 Jul 2011 (2 days) |
| Determination date | 07 October 2011 |
| Member | D Asher |
| Representation | P Cullen, J Jermy ; H Ward-McGrath |
| Location | Masterton |
| Parties | Atkinson v Vet Care Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably disadvantaged and dismissed by respondent – Applicant issued verbal warning regarding deliberate administration of medication other than that prescribed by doctor – Applicant accepted full responsibility – Applicant issued verbal and written warnings for failure to comply with instructions – Applicant disputed allegations – Respondent sent applicant letter containing trespass notice and misconduct allegations – Respondent requested applicant attend disciplinary meetings to discuss issues – Applicant declined to attend meetings – Applicant resigned – Applicant claimed continually harassed and treated unprofessionally by respondent director (“W”) – Applicant claimed while on maternity leave received numerous letters from W which caused continuous stress – Respondent claimed applicant repeatedly failed to follow instructions and all warnings were justified – Respondent claimed personal issues at forefront of stress experienced by applicant – Authority found respondent did not put concerns fairly and reasonably to applicant and did not provide applicant with fair and reasonable opportunity to respond before finding made – Found warnings in serious breach of fundamental procedural requirements – Found warnings disadvantaged applicant – Found other matters raised by applicant did not prevail either because circumstances complained of arose out of genuine misunderstandings or too trivial to warrant disadvantage – Found applicant constructively dismissed due to contractual breaches by respondent and respondent’s trespass notice which did not derive from a proper investigation and had unreasonable scope – Dismissal unjustified – REMEDIES – 50 per cent contributory conduct – Found applicant deliberately elected not to prescribe medication as directed which would have justified summary dismissal – Found applicant’s failure to communicate with W about pregnancy denied W opportunity to meet obligation to ensure safe and healthy working environment and created significant uncertainty in W’s mind about applicant’s ability to inform W about day to day developments – $10,000 compensation appropriate for unjustified disadvantage - $10,000 compensation appropriate for unjustified dismissal – Found reimbursement of lost wages award appropriate – However, found applicant not entitled to lost wages from time of commencing maternity leave until date leave intended to be taken as no causal link between W’s conduct and applicant’s stress condition – ARREARS OF HOLIDAY PAY – Applicant sought unpaid holiday pay – Respondent claimed justified in not paying applicant holiday pay due to cost applicant’s actions may have caused respondent – Found respondent’s concerns did not provide exemption from obligations to pay applicant holiday pay – Found applicant entitled to outstanding holiday pay – ARREARS OF WAGES – Applicant sought unpaid wages for time in lieu – Found applicant not entitled to unpaid wages for time in lieu as not satisfied time worked authorised by respondent – COUNTER CLAIM – BREACH OF CONTRACT – Respondent claimed applicant failed to follow instructions, knowingly delivered incorrect medication to client, failed to adhere to work roster and breached employment obligations by entering into communications of commercial nature with former employee who had complained about respondent – Found no reliable evidence advanced by respondent in support of claims – Found good deal of evidence provided too late – Found to be regretted that significant legal input had not aided parties in appreciating need for substantial evidence to match seriousness of allegations nor the risks and costs of pursuing bitter and personalised claims – Veterinary Nurse |
| Result | Application granted (unjustified disadvantage) (arrears of holiday pay) (unjustified dismissal) ; Contributory conduct (50%) ; Compensation for humiliation etc ($10,000 reduced to $5,000)(unjustified disadvantage) ; Arrears of holiday pay (quantum to be determined) ; Reimbursement of lost wages (quantum to be determined)(reduced by 50%) ; Compensation for humiliation etc ($10,000 reduced to $5,000)(unjustified dismissal) ; Application dismissed (arrears of wages) (counterclaim)(breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Wages Protection Act 1983 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Wellington_153.pdf [pdf 49 KB] |