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Editors --- "Burberry v Good Health Wanganui - Case Summary" [2003] AUIndigLawRpr 10; (2003) 8(1) Australian Indigenous Law Reporter 77

Court and Tribunal Decisions – New Zealand

Burberry v Good Health Wanganui

Employment Court of New Zealand

10 December 2002

Unreported WC 25B/02

Employment law –– reasons for dismissal — dismissal procedure — Maori Mental Health Service — respect for Maori culture — Employment Relations Authority

Facts:

Burberry had been a Maori mental health worker for Good Health Wanganui (‘GHW’) or predecessors for 20 years. She reported operationally to Mr Kinsey, as clinical team leader, and ‘Culturally/Professionally’ both to her community elders and to Mr Firmin, the head of the Maori Mental Health Unit. Firmin was regarded as the reference point within GHW for all Maori cultural matters.

For 17 years Burberry had taken approved annual leave to attend a major Maori cultural festival, where she was responsible for provision of health services to attendees. Kinsey knew that GHW normally approved this leave. In February 2001, upon return from a conference, Burberry applied for 3 days annual leave to attend the festival in March. The application was made only 10 days before the festival instead of the required 14 days. Mr Kinsey did not consider the leave application until prompted by Burberry 2 days before the festival. On the day before the festival he denied her leave for the reason: ‘not long returned from a week’s leave.’ Burberry had by then already committed herself to going, had told her clients and organised their care in her absence. She pleaded for his reconsideration, commenting that it was culturally necessary to go, especially for her to keep her word. Kinsey denied permission but Burberry went anyway.

Upon her return Burberry was told that she would have to meet him later that day about her actions. In the meeting Kinsey cited different reasons for his disapproval of leave, those being the care of her clients. Burberry stressed the cultural importance of attending the festival and of keeping her word that she would attend.

The next day, after consultation with the human resources manager but not with Firmin, GHW decided to dismiss Burberry. She was called to a meeting at 5pm. She was told of her instant dismissal for breaching the code of conduct (away from work when leave had been denied).

Burberry complained to the Employment Relations Authority, which found that GHW had not established that there were good reasons for dismissal, but that Burberry had contributed 50% to the situation. Burberry was awarded 3 months loss of wages and damages for stress and humiliation. Both parties appealed to the Employment Court.

Held (Shaw J), upholding Burberry’s appeal:

1. The decision to refuse leave was unreasonable and unfair. Kinsey took too long to decide. He did not specify his stated concern, about the care of her patients while on leave, nor did he inquire into whether this was satisfied. His motivation was desire to establish his authority, which was unreasonable only the day before the expected leave: [49].

2. Burberry’s decision to take the leave was reasonable in the circumstances. It was reasonable for her to have expected that the leave would be approved, and she tried both to get others to perform her festival duties and to change Kinsey’s mind after notification of the denial. Also she ensured that her clients were cared for while she was away: [50].

3. The dismissal process was unfair. Notice of the significance of the meeting was inadequate, resulting in her inadequate preparation. Also it proceeded on the assumption that the denial of leave was reasonable. And cultural issues were ignored both at the meetings and in consideration of the action to be taken, the judge commented: Mr Kinsey and Mr Barrass were both genuinely surprised that cultural issues had been raised after the event and that Mrs Burberry had not asked for cultural support or procedures during the interview. My perception of the reasons for this is that while Good Health Wanganui makes provision for Maori issues, particularly by establishing [the Maori Mental Health Unit], the issues are perceived as an annexure rather than an integrated part of the culture of Good Health Wanganui. Although Mrs Burberry was obviously Maori and was specifically employed to deal with cultural issues in relation to mental health patients this was not sufficient to alert Mr Barrass and Mr Kinsey to the fact that this meeting could have been and should have been handled in a different way ... it is simplistic and artificial for Good Health Wanganui to attempt to categorise some issues as ‘cultural or Maori’ and others not. The fact that an employee is Maori and is working in a Maori setting should have been sufficient to alert them to a need for an appropriate procedure. The onus should not have been on Mrs Burberry to assert her mana Maori or plead for her cultural identity to be recognised’: [57]-[59].

4. Dismissal was unreasonable and unlawful. The refusal of leave was unlawful. The process of decision-making was unlawful. It was out of proportion both to Burberry’s actions and to her long work record. It was against the code of conduct requirement that any disciplinary action be non-punitive and designed to prevent recurrence: [52].

Order:

The Court awarded Burberry 6 months loss of wages plus $15,000 for stress and humiliation.