Disability trust must pay ex-worker $96k
A senior disability worker who alleged a fellow staff member had assaulted a person in their care and was ‘‘summarily dismissed’’ soon after, has been awarded almost $100,000 by the Employment Court.
The court found the South Waikato Achievement Trust had unjustifiably dismissed Virginia Henry for serious misconduct.
Henry was awarded $95,696 by the court, made up of $52,636 for lost remuneration, special damages of $8060 and compensation of $35,000.
Henry began working for the trust, which runs a community residential service for people with disabilities in Tokoroa, in 2000.
By August 2017, Henry had been promoted to a managerial position as ‘‘2IC Residential Coordinator’’, one of two positions reporting directly to chief executive Russell Ensor.
Henry was summarily dismissed by the trust in August 2018 after an inquiry that began with allegations that one of the trust’s employees may have assaulted a person in its care.
Henry filed a complaint to Ensor about alleged abuse, however, Henry had not witnessed the alleged abuse, which occurred about six months prior, but relied on statements from another support worker.
The trust then carried out an investigation and decided there was not enough evidence to support Henry’s complaint and said it was concerned Henry had an ‘‘improper motive in bringing the complaint’’.
The trust said Henry had complained about the same staff member previously and the new complaint was in retaliation for little being done about the first complaint.
The trust also alleged Henry had failed to report the incident earlier, contrary to its complaints process.
The trust then suspended Henry on full pay before dismissing her for serious misconduct.
After her claim for unjustified dismissal and unjustified disadvantage in relation to the suspension was dismissed by the Employment Relations Authority, Henry took a personal grievance and reinstatement claim to the Employment Court.
The court found the suspension was unjustified because the employer ‘‘did not adequately disclose to [Henry] the reasons for it and there was no proper basis for reaching that decision’’.
The court decided the dismissal was unjustified and said Ensor also did not follow the trust’s complaint process, making his expectations about complying with it ‘‘potentially confusing’’.
The trust was found to have treated the employee differently from how it treated the support worker who also did not report the alleged assault at the time, and the trust did not take any action against the support worker.
The court found a range of issues regarding the trust’s investigation into Henry’s actions and said the trust ‘‘drew a long bow’’ in deciding that Henry’s complaint was retaliatory, and the process of interviewing other staff to gather evidence was inadequate.
The conclusion the trust reached ‘‘was not objectively something that could be derived from the interviews and was not fair’’, the court said.
But, the court declined to give Henry her job back and said ‘‘reinstatement was not practicable or reasonable because the employee (Henry) would have had to work with people she had accused of significant professional and personal lapses’’.