'Sacked' claimant not actually fired

Last updated 05:00 28/12/2012

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An Auckland mental health nurse who alleged he was sacked without reason has been denied a personal grievance claim because he had not actually been fired from his job.

Barry Dunn complained to the Employment Relations Authority in 2010 that the Waitakere District Health Board unjustifiably dismissed him after taking extended sick leave.

He claimed he had been subjected to workplace bullying, that the health board failed to act in good faith in regard to his health and he had suffered an unjustifiable disadvantage following a verbal warning in 2007.

Dunn received a letter in 2008 from the health board requesting his employment intentions.

It was followed by a second letter stating "if we haven't had any clarity about your intentions to work ... we will assume you do not intend to return to work and look to terminate."

He replied through his lawyer: "my client instructs that a return to work is possible. However this is conditional upon WDHB removing the barriers as outlined in Dr Kenny's report".

The health board wrote a third letter asking for clarification around "what barriers" Dunn was referring to as his "possible return to work was rather unclear".

After no response and further letters from the health board, his employment was terminated with one month's notice.

Dunn's lawyer responded that the decision was "premature and in the circumstances unjustified".

The health board sent a further letter offering to discuss the matter, but Dunn complained to the authority a year later.

Dunn lodged a personal grievance claim which was rejected by the health board. It said the complaint was "outside the 90 days period for submission" and the verbal warning he was given "was substantively justified and carried out in a procedurally fair manner".

It denied any allegations of bullying and stated "the actions of the manager were legitimate and reasonable to addressing performance and concerns with Dunn".

The authority found the health board had taken reasonable steps and was prepared to discuss the proposed termination with Dunn.

It determined Dunn did not raise a personal grievance in his letters and at the time of claiming an unjustified dismissal, he was still employed.

For those reasons the authority did not pursue its investigation and invited parties to reach a resolution in regards to costs.

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