Employee Improperly Dismissed after Predetermined Accusations
- Business Central
- Oct 27, 2024
- 4 min read
Updated: Nov 5, 2024
NLC worked for the Tainui Home Trust Board (Tainui) as a clinical nurse manager. They claimed Tainui unjustifiably dismissed them and unjustifiably disadvantaged them when they were suspended. They argued Tainui owed them a variety of payments relating to overtime, on-call work and annual holiday pay.
NLC was hesitant to accept the role of a clinical nurse manager due to its high workload. They only did so after the chief executive officer (CEO) agreed to employ more clinical coordinators. But during the Covid-19 lockdown, the CEO stepped down in October 2020 and his successor, Mr Hudson, started in March 2021.
An external audit of Tainui’s operations conducted on 3 and 4 March 2021 reported “a high level of concern” to do with NLC. Tainui found that NLC had harassed and bullied staff members. To address this, the acting CEO, Mr Burn, arranged for a disciplinary meeting disguised as a meeting to check in on NLC’s recovery from surgery and return to work.
At the 2 April 2021 meeting, Mr Burn and Mr Hudson questioned NLC about the audit report. Tainui did not notify NLC ahead of time about any of the topics they would be discussing or give an opportunity to have a support person or representative present.
NLC returned to work on light duties on 23 April 2021, but Mr Hudson told NLC that they “couldn’t be on the floor”. Mr Hudson sent NLC home for a few days and Tainui never ended the suspension. Tainui’s employment agreement provided for suspension in cases of “serious misconduct, workplace bullying or harassment” and that it could come “after consultation”.
Another meeting was arranged on 29 April 2021. At the meeting, NLC confronted Mr Hudson by asking whether they were right for the position. Mr Hudson admitted, “No I don’t think you are the right person… right now the staff don’t respect you.” Mr Hudson did not provide any evidence when NLC requested it. He did not provide any notice of the meeting and did not allow NLC to have a support person for the meeting.
He continued to emphasise that their relationship had deteriorated and that NLC’s best option was to leave.
Tainui held more meetings, with steadily more formal processes, but still did not specify any particular incidents. On 11 May 2021, Mr Burn and Mr Hudson predetermined the direction of the conversation and continued to say they “didn’t think this is going to work”.
On 25 June 2021, Tainui was working through a formal disciplinary process for serious misconduct and obtained witness statements for incidents about a year prior. Tainui ultimately confirmed dismissal for bullying equating serious misconduct on 30 July 2021. It stated the dismissal was also based on taking too long for NLC to get to the level required for a clinical nurse manager.
The Employment Relations Authority (the Authority) found that Tainui did not follow any conditions in its suspension clause. It also did not conduct any meaningful process or look at assessing NLC’s capacity. Tainui’s private reasons for suspending included NLC’s capacity and concerns from the audit. The Authority did not consider that Tainui had any substantive justification for the suspension and Tainui did not cite them as the reasons. Tainui’s suspension was unjustified in both process and substance, which disadvantaged NLC.
The Authority found Tainui made conclusive findings against NLC based on inadequate information. It did not give notice or seek evidence for the claims. The audit report was simply adopted as criticisms of NLC without Tainui conducting its own inquiries, assessing NLC’s performance for itself or giving NLC an opportunity to comment on it. The Authority felt the report was not “damning” of NLC as it did not conclusively assess NLC’s ability to perform the role. The report’s critique concerned staff other than NLC, but Tainui seemingly ignored the organisational failure. Tainui also had a thorough staff performance and management policy, which it did not use to handle the issue constructively.
Tainui accepted staff complaints without sufficient investigation or evidence. The complaints were historic, vague and were only produced in response to queries from NLC’s representative. Mr Hudson’s comments in the meeting on 29 April 2021 were unfair and unreasonable. By predetermining the matter, Tainui deprived NLC of their opportunity to respond to the allegations. All of these meant Tainui also lacked substantive or procedural justification for the dismissal.
The Authority awarded NLC three months’ lost wages at $30,270.50 for being dismissed. It rejected the balancing of an assessment of compensation for hurt and humiliation against the audit and staff concerns. It felt that these were not relevant when Tainui did not follow fair process on these concerns. NLC was hurt and stressed by the incident and for a period kept to themselves. The Authority awarded $22,500 in compensation for hurt and humiliation stemming from the dismissal and another $5,000 for the disadvantage.
NLC said their overtime was credited as time in lieu and when cashed in, Tainui did not compensate at its agreed overtime rate. The Authority agreed and calculated $4,781.25 for arrears. It also found that Tainui did not pay NLC on-call allowances and overtime payments that they would have received while suspended. It calculated these arrears totalled $7,399.
Tainui required a clinical person be on call after hours, who had to be within reach of the facility within 20 minutes. As a result, NLC said that they were on call 24/7 during public holidays and had to remain within phone coverage and driving distance. The Authority found NLC was entitled to six public holidays in lieu and awarded $2,160. Finally, the Authority ordered Tainui to pay KiwiSaver on the above unpaid earnings at $464.62. Costs were reserved.
NLC v Tainui Home Trust Board [[2024] NZERA 79; 12/02/24; R Anderson]
