| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 180 |
| Hearing date | 15 Nov 2011 |
| Determination date | 18 November 2011 |
| Member | P Cheyne |
| Representation | A Sharma ; K Dunn |
| Location | Nelson |
| Parties | Gazeley v Oceania Group (NZ) Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Respondent had contractual relationship with District Health Board (“DHB”) relating to respondent’s rest home where applicant worked (“X”) – Contract allowed DHB to audit X and DHB decided to appoint temporary manager as respondent had breached obligations – Respondent alleged applicant had repeatedly made intimidating and threatening remarks to staff and residents, had physically and verbally abused residents and had not rectified earlier audit issues - Applicant was suspended by respondent’s senior manager pending investigation – Respondent claimed applicant had discussed tying up resident which breached respondent’s policy – Co-worker claimed applicant said resident should be tied up only in ironic way as resident at risk of falling over – Found respondent decided incident still breached respondent’s policy and investigated matter appropriately – Applicant warned after involved in second incident where resident restrained and medicated in way that breached resident’s rights – Respondent decided could not make clear finding on allegation applicant made intimidating and threatening remarks but evidence applicant had failed to communicate appropriately and professionally with staff and residents – Authority found employee who claimed applicant made derogatory remarks may have misunderstood what applicant said and strongly arguable that conduct alone did not warrant disciplinary sanction – Evidence that some residents found applicant’s comments amusing not offensive and arguable that applicant’s comments to residents not sufficiently serious to warrant dismissal – Respondent claimed applicant’s lack of clinical oversight unacceptable and resulted in significant clinical failings - Applicant claimed had to rely on team as respondent required applicant to also work at other respondent’s rest homes as well as X – Respondent claimed lost trust and confidence in applicant – Applicant dismissed - Found application for interim reinstatement to be determined under amended s125 Employment Relations Act 2000 – Found applicant needed to show reinstatement was practicable and reasonable - Found applicant had arguable but not strongly arguable case for permanent reinstatement – Found overall evidence did not show applicant’s loss of income was so serious demanded interim reinstatement and applicant would receive compensation if grievance established - Respondent claimed interim reinstatement would disrupt progress with respondent’s new manager – Found balance of convenience favoured respondent – Found were significant clinical and other problems at X – Found should not disturb present management arrangements at X – Application for interim reinstatement declined - Facility Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s125 |
| Cases Cited | Angus v Ports of Auckland [2011] NZEMPC 125;Cliff v Air New Zealand [2005] ERNZ 1;McKean v Ports of Auckland Ltd [2011] NZEMPC 128 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Christchurch_180.pdf [pdf 64 KB] |