| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 524 |
| Hearing date | 8 Dec 2011 |
| Determination date | 09 December 2011 |
| Member | J Crichton |
| Representation | D White ; M O'Neill |
| Location | Hamilton |
| Parties | Jarvis-Hall v Waikato Community Hospice Trust t/a Hospice Waikato |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably dismissed – Issues raised about applicant’s performance and weekly mentoring sessions held with Chief executive (“B”) – Performance management process undertaken after applicant hired staff member without B’s knowledge or authority as well as other performance issues – Applicant refused to embrace corrective coaching plan or participate in respondent’s disciplinary process – Applicant dismissed – Authority found reinstatement no longer primary remedy – Found Government intended to make it more difficult for employees to obtain reinstatement – Found applicant met relatively low threshold of arguable case – Authority relied on applicant’s allegations that never given notice of specific allegation of misconduct, unable to explain or refute allegation, and never told dismissal was potential outcome of disciplinary process – Found new test was whether reinstatement both practicable and reasonable – Found applicant had some supporters in workplace but others dismissive of claims and supported respondent’s position – B claimed would have real difficulty even being cordial to applicant – Found difficult to see how B and applicant could continue to work together – Found working relationship between parties damaged beyond repair – Respondent claimed applicant taken more annual leave than entitled and if reinstated, disciplinary investigation would immediately be required – Found if reinstatement ordered, period before substantive determination of matters would almost exclusively be taken up with investigatory process – Found reinstatement not practicable or reasonable – Found prospect of reinstatement remote and only category of reinstatement sought at present was on interim basis which made reasonableness and practicability of reinstatement even less sensible – Found damages only proper remedy – Found damages could be appropriately adjusted to meet applicant’s contribution – Found any tension between staff as result of reinstatement would impact negatively on patient care – Applicant claimed failure to be reinstated would impact negatively on career – Found Authority could not consider permanent reinstatement as not yet sought – Found personality conflict between applicant and B – Found balance of convenience favoured respondent – Found overall justice favoured respondent – Found respondent had stronger case – Found reinstatement not practicable or reasonable – Clinical Nurse Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s125;ERA s125(2);ERA s127(4);Employment Relations Amendment Act 2010 s16 |
| Cases Cited | Cliff v Air New Zealand Ltd [2005] ERNZ 1 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_524.pdf [pdf 39 KB] |