| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 479 |
| Hearing date | 31 Oct 2011 |
| Determination date | 04 November 2011 |
| Member | R Larmer |
| Representation | F Wood ; G Peploe |
| Location | Auckland |
| Parties | Wylie v Lakes District Health Board |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Respondent received complaint from co-worker (“B”) about applicant’s treatment of patient (“first complaint”) – Respondent summarily dismissed applicant for serious misconduct after investigating first complaint - Authority found application for interim reinstatement to be determined under amended s103A and s125 Employment Relations Act 2000 – Found respondent may have breached good faith obligations and not followed fair process - Found based on incomplete evidence before Authority was arguable case applicant unjustifiably dismissed – Found due to applicant’s length of service, age and ability to obtain alternative employment very unlikely lost remuneration award would compensate applicant’s loss of ongoing employment – Found applicant’s contributory conduct could not be assessed due to incomplete evidence – Found based on applicant’s evidence arguable case would be reinstated if was found applicant unjustifiably dismissed – B claimed after applicant dismissed was concerned about how applicant extracted tooth from another patient (“second complaint”) - Respondent claimed discovery of second complaint would also have justified dismissal and applicant did not have arguable case for reinstatement – Found second complaint must be established to balance of probabilities standard before would impact on remedies – Found arguable if was found applicant unjustifiably dismissed reinstatement would be practical and reasonable – Found Authority’s substantive determination would be significantly delayed – Applicant claimed experienced significant and ongoing financial hardship – Found monetary compensation inadequate remedy for applicant therefore risk of injustice outweighed risk to respondent – Respondent claimed applicant would need supervision and would have to bear cost – Found respondent would not need to employ someone to supervise applicant – Found respondent’s submissions reputation would be damaged if reinstated applicant, would damage team environment and adversely impact other employees, particularly B, were only speculative – Found applicant had sufficient assets and aware of potential consequences of undertaking – Respondent claimed not in public interest to reinstate applicant as clinical practices unsafe – Found concerns about applicant’s practices could be addressed with training and balance of convenience favoured applicant – Found based on incomplete evidence applicant’s case stronger than respondent’s and arguable respondent should have assisted applicant with improving performance – Found professional advisor’s involvement in disciplinary process arguably not compliant with respondent’s good faith obligations – Found arguable respondent did not consider applicant’s explanation and outcome predetermined – Found therefore balance of convenience favoured applicant – Respondent claimed applicant had delayed pursuing interim reinstatement – Found overall justice favoured applicant – Found applicant’s return to work should be delayed for two weeks to give parties time to work through issues – Application for interim reinstatement granted subject to conditions - Dental Therapist |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s124;ERA s125;ERA s127 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEMPC 125;Cliff v Air New Zealand [2005] ERNZ 1;McKean v Ports of Auckland Ltd [2011] NZEMPC 128;Port of Napier Ltd v Maritime Union of New Zealand [2007] ERNZ 826;Salt v Fell [2008] ERNZ 155;Wellington Free Ambulance Service Inc v Adams [2010] NZEMPC 59 |
| Number of Pages | 18 |
| PDF File Link: | 2011_NZERA_Auckland_479.pdf [pdf 75 KB] |