Employment law database

Restrictions: OK
Jurisdiction: Employment Relations Authority - Auckland
Reference No.: AA 31/07
Hearing Date: 14 Aug 2006
Judgment Date: 13 February 2007
Statutory Officer: V Campbell
Representation: B Samujh ; O Collette-Moxon
Location: Auckland
Parties: Kneebone v Schizophrenia Fellowship Waikato Incorporated
Summary: UNJUSTIFIED DISADVANTAGE - Applicant claimed subjected to several incidents of bullying by co-worker (M") - Alleged respondent breached duty to provide safe workplace - Also claimed breached trust, confidence and good faith - Respondent made policy change which forbade applicant from having family members as clients - Disadvantaged by manner change implemented - Change heightened applicant's perception of bullying - Received written warning for incident with committee member - Burden to show proper and impartial consideration given to applicant's explanation not discharged - Disadvantaged by written warning - While timing unfortunate, warning did not breach obligation to act in good faith - Fair and reasonable employer would have appointed different committee member to investigate incident and decide disciplinary action - Actions contributed significantly to applicant's deteriorating health - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent unaware applicant suffered from seizures - Resigned after period of sick leave - Claimed respondent's action made it untenable to continue working given effect on health - No evidence M intended to undermine or cause fear or distress in applicant or that behaviour intimidating, malicious or insulting - Respondent met obligations when investigated applicant's concerns and attempted to resolve them - Reached reasonable conclusion source of problem personality clash - Respondent did everything reasonably could in light of applicant's refusal to participate in mediation and resolution processes - On balance of probability, respondent not responsible for applicant's situation - Allegations serious and evidence needed to be convincing - Applicant and M had difficulties working together but did not mean bullying occurred - Facts did not support constructive dismissal finding - No constructive dismissal - Authority satisfied claims relating to constructive dismissal, breaches of Health and Safety in Employment Act 1992, and good faith provisions relied on same facts - Those claims sufficiently addressed by findings related to constructive dismissal - Remedies - Applicant rude and uncooperative in incident with co-workers - Contributory conduct 25 percent - Length of service five years - Mental health worker"
Result: Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($6,000 reduced to $4,500) ; Application dismissed (Unjustified dismissal) ; Costs reserved
Main Category: Personal Grievance
Statutes: ERA s148;HSE;Holidays Act 2003
Cases Cited: Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Auckland Shop Employees Union v Woolworth's (NZ) Ltd [1985] 2 NZLR 372;Evans v Gen-I Limited unreported, D King, 29 August 2005, AA 333/05;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union [1990] 3 NZILR 23 (CA);Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 ; [1997] 3 All ER 1 (CA);NZ Educational Institute v Board of Trustees of Auckland Normal Intermediate [1992] 3 ERNZ 197
Number of Pages: 41
PDF File Link: aa 31_07.pdf [pdf 149 KB]