| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 191 |
| Hearing date | 12 Aug 2011 |
| Determination date | 02 December 2011 |
| Member | M B Loftus |
| Representation | T Oldfield ; S Langton |
| Location | Dunedin |
| Parties | Dalliessi v ISS Facility Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent - Respondent had services contract with District Health Board (“DHB”) - DHB’s kitchen manager (“A”) passed away – Applicant saw A’s body with face uncovered while completing usual duties at workplace – Applicant told co-worker (“K”) of A’s death in presence of second co-worker – DHB claimed applicant had breached patient confidentiality and requested respondent’s services manager (“T”) investigate matter - Kitchen staff advised by DHB general manager (“D”) of A’s death later that day – T claimed when D informed kitchen staff of A’s death was told they already knew as applicant had told them – Applicant confirmed to T that allegation had told co-workers of A’s death correct – T told applicant considered matter serious and applicant would receive written complaint – T claimed fundamentally important that DHB had confidence in respondent’s employees and applicant’s conduct likely to prejudicially affect respondent’s interests – T sent applicant letter outlining allegations and requested meeting – T advised by respondent’s human resources manager (“M”) that investigation unnecessary as applicant had admitted told co-worker about A’s death – T advised union organiser (“B”) that investigation meeting had become disciplinary meeting – B attended meeting with applicant and T – Parties agreed meeting was investigatory – Respondent claimed third co-worker overheard applicant’s conversation with K – B claimed applicant only told K of A’s death – Applicant claimed was so shocked by A’s death needed to confide in K who applicant considered friend – T adjourned second meeting with applicant to call M for advice and call K about applicant’s demeanour when told K of A’s death – K claimed applicant seemed normal self when told K of A’s death and flung open door to make announcement - Applicant claimed T told applicant when resumed meeting believed applicant thought A’s death was “hot news” and applicant could not be trusted – Applicant dismissed – Previous complaint made two and half years ago by DHB staff about applicant discussing employee’s personal information with other staff – Authority found justification for dismissal to be determined under amended s103A Employment Relations Act 2000 - Respondent’s letter to applicant and parties’ employment agreement made frequent references to Privacy Act 2003 - Authority noted concerns that Privacy Act 2003 did not apply after death – Found irrelevant privacy considerations possibly influenced respondent’s decision to dismiss applicant – Applicant claimed had never seen respondent’s handbook or code of conduct although applicant accepted should not have reacted as applicant did when saw A’s body – Found although applicant saw A’s face in area not open to public was possible A’s face also uncovered in public area – Found therefore arguable confidentiality had been waived but respondent failed to consider possibility – Found respondent failed to consider D announced A’s death to all staff soon after applicant told K – Found applicant’s previous confidentiality breach was inappropriately considered by respondent – Found A predetermined applicant’s dismissal due to concerns about respondent’s relationship with DHB – Found not clear applicant given opportunity to explain demeanour or respondent to allegation that respondent’s trust and confidence in applicant was undermined – Found dismissal not decision of fair and reasonable employer in all circumstances as narrow in scope and procedurally deficient – Dismissal unjustified – REMEDIES – Found applicant already penalised for contributory conduct and further reduction inappropriate - Found reinstatement not practicable or reasonable - $4,000 compensation appropriate - $6,983 reimbursement of lost wages appropriate - Cleaner |
| Result | Application granted ; Reimbursement of lost wages ($6,983.80) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s128(2);Privacy Act 1993;Privacy Act 1993 s2 |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;W & H Newspapers Ltd v Oram [2002] 2 ERNZ 448 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Christchurch_191.pdf [pdf 67 KB] |