O'BRIEN v THE PLATFORM MEDIA NZ LIMITED NZERA 56

This page summarises and embeds an Employment Relations Authority (ERA) determination. It is not legal advice.

Story in plain English

The Authority ordered remedies and addressed unjustified dismissal issues.

In summary, The question of whether the Authority's investigation should include the dismissal related claims, which were lodged after the investigation for this matter concluded, was the subject of disagreement. After that, This determination does not deal with the dismissal related claims which were ultimately the subject of a separate investigation and in relation to which a separate determination will issue. Later, Following the investigation meeting, Ms O'Brien sought to lodge an amended statement of problem incorporating, amongst other things, a claim of unjustified dismissal. The determination records that The incident of June (date not specified) Ms O'Brien says that on June (date not specified) she was subject to behaviour from Mr Plunket whereby he became very angry with her in relation to her being emailed by one of the other directors, Chloe Wright. The Authority notes that Ms O'Brien, in the same letter, was requested to provide a copy of any passwords and associated information relating to The Platform's social media accounts, and any emails received, and was instructed to provide The Platform a copy of the audio recording of the meetings on 8 June 2022. Ultimately, The letter sought a meeting with Ms O'Brien to obtain her response to the allegations and recorded that disciplinary action up to and including summary dismissal was a possibility. In the end, Ms O'Brien's evidence of the 7 June 2022 incident included: Mr Plunket was in his office and I was on the phone to [the other employee] (who said [they were] 10 minutes away).

Key case markers

• This determination comes from the Wellington registry.
• The parties are O'BRIEN (employee) and THE PLATFORM MEDIA NZ LIMITED (employer).
• Hearing date noted: nan.
• Authority member: nan.

Key events described

• The question of whether the Authority's investigation should include the dismissal related claims, which were lodged after the investigation for this matter concluded, was the subject of disagreement.
• This determination does not deal with the dismissal related claims which were ultimately the subject of a separate investigation and in relation to which a separate determination will issue.
• Following the investigation meeting, Ms O'Brien sought to lodge an amended statement of problem incorporating, amongst other things, a claim of unjustified dismissal.
• The incident of June (date not specified) Ms O'Brien says that on June (date not specified) she was subject to behaviour from Mr Plunket whereby he became very angry with her in relation to her being emailed by one of the other directors, Chloe Wright.
• Ms O'Brien, in the same letter, was requested to provide a copy of any passwords and associated information relating to The Platform's social media accounts, and any emails received, and was instructed to provide The Platform a copy of the audio recording of the meetings on 8 June 2022.
• The letter sought a meeting with Ms O'Brien to obtain her response to the allegations and recorded that disciplinary action up to and including summary dismissal was a possibility.
• Ms O'Brien's evidence of the 7 June 2022 incident included: Mr Plunket was in his office and I was on the phone to [the other employee] (who said [they were] 10 minutes away).
• While there is some contest as to the details of the incident that occurred on 7 June 2024, The Authority was satisfied that Mr Plunket's behaviour, as he has admitted, was inappropriate.
• While the breach of confidence allegation was ultimately withdrawn, The Authority found that the allegation was only made as a retaliatory measure against Ms O'Brien in response to her complaints about Mr Plunket.
• The basis for the allegation and issuing of the final warning included that there was a material impact from the delay and that the recording was inconsistent with what Ms O'Brien had been asserting as to the conduct of the meeting on 8 June 2022.
• The Authority found that Ms O'Brien's assertions made as to the conduct of the meeting were substantially correct and that as such the basis for the final warning was flawed in that respect.
• However, The Authority found that having regard to Mr Plunket's email of 7 June 2022 that followed his outburst, the delay in provision of the recording was inconsistent with Ms O'Brien's duty of good faith and that further steps should have been taken to ensure the recording was provided in a timely manner.

Decision markers

• While there is some contest as to the details of the incident that occurred on 7 June 2024, The Authority was satisfied that Mr Plunket's behaviour, as he has admitted, was inappropriate.
• The Authority found that Ms O'Brien was impacted by that behaviour and held genuine concerns as to her health and safety in the workplace.
• When considered in context, The Authority found that the issues raised by Mr Plunket in his email to Ms O'Brien on 7 June 2022, which followed the incident, were retaliatory.
• Further, The Authority found that the circulation of the relevant email to Ms O'Brien did not amount to a genuine attempt to address her specific concerns.
• The Authority was satisfied that having regard to the issues raised by Ms O'Brien following the incident of 7 June 2022, that The Platform knew that there was behaviour occurring in the workplace that gave rise to the risk of harm.
• The Authority found that Ms O'Brien was unjustifiably disadvantaged in her employment by the actions of The Platform in making unfounded allegations and taking retaliatory action against her.
• The Authority found that Ms O'Brien's assertions made as to the conduct of the meeting were substantially correct and that as such the basis for the final warning was flawed in that respect.
• The Authority was satisfied that the disciplinary action taken against Ms O'Brien was unjustified.
• In terms of compensation under the Act, The Authority found that there was ultimately no financial loss on account of Ms O'Brien being able to utilise her time and efforts, appropriately in my view, to pursue alternate work.
• However, The Authority found that having regard to Mr Plunket's email of 7 June 2022 that followed his outburst, the delay in provision of the recording was inconsistent with Ms O'Brien's duty of good faith and that further steps should have been taken to ensure the recording was provided in a timely manner.

Orders and payments mentioned

• Compensation: $17,550.00
• Filing fee: $71.55
• Costs: Reserved

Note: figures above are extracted from the orders section (or the final orders wording). Check the PDF for full context and any gross/net directions.

Practical takeaways

• Unjustified disadvantage claims require both unjustified conduct and actual disadvantage.
• Dismissal justification is assessed through s 103A: what a fair and reasonable employer could have done in all the circumstances.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.