| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 185 |
| Hearing date | 10 Jun 2011 |
| Determination date | 25 November 2011 |
| Member | M B Loftus |
| Representation | A McKenzie ; P Shaw |
| Location | Christchurch |
| Parties | de Bruin v Canterbury District Health Board |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed patient (“M”) hit another patient and became agitated – Applicant claimed hit and spat on by M and in response slapped M’s cheek - Applicant claimed immediately regretted action – Incident reported to manager (“K”) – M claimed applicant put knee on M’s chest causing injury – Doctor found no evidence of injury – Witnesses claimed applicant slapped M after M hit applicant and spat in applicant’s face – One witness claimed applicant used knee to restrain M and other witness said restraining M was messy – Applicant attended disciplinary meeting – Applicant raised personal circumstances that affected way applicant reacted towards M – Applicant asked K to consider applicant’s long service – Applicant dismissed – Respondent claimed dismissed applicant for slapping M and holding down M with applicant’s knee – Authority found amendment to s103A Employment Relations Act 2000 (“ERA”) was relevant test – Applicant claimed respondent could not reach conclusion applicant used knee to restrain M – Found respondent entitled to reach conclusion based on reasonable evidence after fair and proper deliberation – Found evidence suggested M had made unsubstantiated complaints in past and applicant denied allegation about using knee to restrain M – Found respondent entitled to reached conclusion – Found one instance of violence could be considered matter of utmost gravity which would inevitably have major consequences – Found slap alone could have justified decision to dismiss – Found respondent to comply with procedural requirements in s103A(3) ERA – Found issue of resources irrelevant – Found applicant well aware of respondent’s concerns – Found applicant given opportunity to explain conduct – Found respondent considered explanations tendered – Found respondent considered applicant’s personal circumstances at time of conduct but circumstances could not change outcome – Found applicant failed to use support available – K claimed applicant’s long and unblemished experience meant applicant should not have reacted in that way – Dismissal justified – Registered Nurse |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(a) |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Madden v New Zealand Railways Corporation [1991] 2 ERNZ 690;Timu v Waitemata District Health Board [2007] ERNZ 419;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Christchurch_185.pdf [pdf 71 KB] |