Hillford v The Order of St John Norther Region Trust Board (2018) NZERA Auckland 190
An ex-St John ambulance driver has been awarded nearly $68,000 plus further lost wages for his employer’s failure to provide him with a safe workplace and for unjustified dismissal.
The employee initially complained to his employer of bullying in early 2013. He told his managers that St John Communications staff were not treating him with respect. For example, he was assigned a job by them when his ambulance was not ready, one of them hung up the phone on him, and he was not given his work roster on more than one occasion. When he requested the roster, a Communications staff member sent him a sarcastic and threatening email. Later, the employee’s name was left off the work roster.
The managers were kept informed of the problems by the employee, but little action was taken. Facilitation was suggested, but was never arranged. The employee’s stress levels continued to rise and he presented St John with medical certificates relating to the stress. St John began monitoring the employee without telling him. In late 2014 a further incident occurred with Communications and the employee went on sick leave.
He raised a personal grievance about unfair treatment by St John and claimed that the Communications staff had been very rude, condescending and obstructive towards him. While St John said it would undertake a full investigation into the complaint, this did not occur. One of his managers was appointed investigator, but he delegated to others the task of speaking with witnesses. Very few records were kept of discussions with witnesses.
A second personal grievance was raised in April 2015 for unjustified disadvantage due to St John’s refusal to pay the employee sick leave while he was off work and in possession of a medical certificate. He shortly returned to work; however, the next month another issue arose. He had taken some St John forms home that held confidential patient information. He returned some forms, but said he had been given permission to take the forms. After attending a disciplinary meeting about this matter, he was dismissed on two weeks’ notice, which he was not required to work.
The Employment Relations Authority firstly considered the disadvantage claim that St John failed to follow process and justly and correctly investigate allegations of bullying. This is an aspect of the implied and statutory duty to provide a safe workplace. The requirement to take all practicable steps to ensure an employee’s safety arises where an employer knows or ought reasonably to know about the circumstances giving rise to the risk of harm. The employment agreement also includes a commitment to take precautions for the employee’s health and safety, and the St John Harassment Policy was also relevant. Managers were required to take prompt action in response to a bullying complaint.
The Authority held that St John knew of the issues between the employee and the Communications staff from May 2013 and it was reasonably foreseeable that a failure to take action may result in the employee suffering harm. Over a year later the employee’s mental health had deteriorated significantly because of the stressful work situation.
St John failed to take all reasonably practicable steps to avoid harm to the employee before he went on sick leave and during that period. His complaints had been largely ignored by his managers. The employer was also found to have conducted a flawed investigation process. The Authority found that the manager given responsibility for the investigation was not impartial and did not have time to conduct the investigation. He delegated the witness interviews but no notes were kept of what he said to the delegated staff or what the witnesses had said, except for an unsigned statement and a handwritten response. St John also failed to speak with the employee before completing its investigation, and did not give all the information it relied on to the employee to consider. St John had decided that no bullying had occurred.
When the employee returned to work, no plan was put in place to safeguard his health or address the original issues he had complained of.
The Authority held that had St John dealt properly with the original complaints there would have been a fair chance that a solution could have been found without the employee suffering more harm. The decision to stop paid sick leave was a further disadvantage and added to the employee’s distress.
As to the claim of unjustified dismissal, the Authority held that there were a number of serious defects in the process. Not all relevant information was provided to the employee and his explanations were not properly considered before the decision to dismiss was made. The Authority found that the taking of the confidential forms by the employee was not the real reason for his dismissal. St John was looking for a reason to dismiss the employee and the dismissal was found to be unjustified.
The employee was awarded lost wages of $32,918 arising from the unjustified dismissal and the difference between what he would have received in wages for six months, and his sick leave payments, as well as $35,000 in compensation for humiliation, loss of dignity, and injury to the feelings.