ERA finds against Midtown

Queenstown's Midtown Medical Ltd has been ordered by the Employment Relations Authority (ERA) to pay $20,248 to a former employee found to have been unjustifiably dismissed in November 2010.

ERA member Michael Loftus said in his determination, dated November 22, Midtown - which opened in June 2010 - was facing "fiscal pressure" which it attempted to address by "unilaterally reducing [Ms Ross'] hours of work".

"She claims she rejected the proposed changes and Midtown responded by making her redundant. She claims the redundancy was unjustified given a lack of consultation."

The company, however, denied Ms Ross' dismissal and allegations.

It said its financial situation forced it to try to discuss Ms Ross' working hours and it had "genuinely attempted to consult" her regarding a temporary reduction in working hours.

"However, in breach of her duty of good faith to be active and constructive, responsive and communicative, the applicant has refused to engage with the respondent and has instead cried and become agitated," the company said.

Ms Ross began her employment with the company as a practice nurse/manager on June 2010, working 32 hours a week at $30 an hour.

Remuneration for work as practice manager was to be a $2000 bonus payable after three months, provided Midtown broke even.

A further $5000 was to be paid after five months if the company was in profit.

Various changes were made to Ms Ross' hours, including an increase to nine hours each Friday, which the company claimed Ms Ross "suddenly decided" to do.

Mr Loftus said the practice did not perform at the level hoped and cash flow was "poor".

After regular financial updates, staff were told on October 6, 2010 that the business needed to make savings if it was to continue, and the situation was "grim".

On October 13, Ms Ross was advised to finish work at 3pm, as the practice was quiet.

Despite protesting, she was sent home early each remaining day that week and sought to have her hours discussed immediately.

Midtown founder Greg Roberts told the ERA the business could not afford to pay for her increased hours on Fridays and wanted to restore them to what was originally agreed.

Midtown made several attempts to discuss the matter with Ms Ross but each time, it claimed, she became "agitated", "started crying", "would not communicate" and, after a discussion on November 10, "threw ... papers off the desk and stormed out of the office".

"She came back in crying and told me that I was naive to not have enough money to keep a nurse on the hours that she required," Mr Roberts said.

After Midtown requested a formal meeting about the issue, on November 15 it was explained the practice was losing money and Mr Roberts wanted to have a part-time nurse on call.

Ms Ross said she asked what options were available for discussion and was told there were "no other options", the business did not need a full-time nurse and it was "legally called redundancy".

"I asked Mr Roberts, 'What does that mean, how does that work with notice, when does the redundancy apply from?

'"Mr Roberts informed me that 'it applies from now'."

She was advised her final pay would include the agreed $2000 bonus.

Mr Roberts said he explained the practice had tried to align nurse hours with patient hours and from that day there was no full-time position available.

He said Ms Ross became emotional, accused him of having predetermined the issue, told him he was "financially incompetent" and began swearing at him.

Mr Roberts left the room to allow Ms Ross to calm down but said she emerged soon after, tore up several letters, packed her bags and "stormed" from the premises.

On November 19, Midtown received a letter from a solicitor raising the personal grievance.

Mr Loftus concluded there had been a dismissal, deemed unjustified given the consultation process did not run its course and Midtown failed to consider alternatives to redundancy.

It had not adhered to a requirement under law for a "cooling period" following what Mr Loftus described as a "tantrum" by Ms Ross and the business advertised for a replacement the following day - confirming her departure had not already been signalled.

There was also no evidence Ms Ross was put "on notice" after failing to engage with the company over the issue.

Mr Loftus said Ms Ross sought $13,248 in lost wages and $15,000 compensation for hurt and humiliation.

Having considered the evidence, he concluded in addition to lost wages, $5000 was appropriate compensation, and also ordered payment of the $2000 bonus.


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