| 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] |
