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DHB told to reinstate fired staff

Four staff dismissed by the Wairarapa District Health Board in June want their jobs back. PHOTO/FILE

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The Employment Relations Authority has ordered the Wairarapa District Health Board to temporarily reinstate four staff members it dismissed this year while an investigation into their claims is under way.

The staff members, who worked in the Central Sterile Services Department, were dismissed on June 9 after complaining about improper sterilisation of surgical implements and alleged workplace bullying.

An investigation into the claims is scheduled for the week starting August 31.

Each staff member stated their dismissal was unjustified, claiming unjustified disadvantage and breach of the duty of good faith.

Director-General of Health Ashley Bloomfield was notified about the claims, and a spokesperson for the Ministry of Health said it would not be making comment on the situation at this stage.

ERA member Michael Loftus said evidence from the former staff members and the DHB showed the CSSD “could be considered dysfunctional due to a series of problems that started to emerge in 2018”.

“As time passed, staff made numerous complaints about the behaviour of their team leader.”

The DHB launched an external review of the CSSD which resulted in initiatives designed to improve team processes, but the complaints continued.

On March 16, the staff members’ lawyer Jills Angus Burney sent a letter to the DHB about a crisis in the CSSD team and voiced a lack of confidence in the team leader’s competency.

The DHB responded on March 19 and agreed the issues had been long running and difficult.

It asked there be a meeting to discuss them which took place the following day via conference call.

The DHB proposed a facilitative process but that was superseded by the covid-19 lockdown which happened days later.

Mediation happened on April 20 but failed to resolve the issues and a facilitated restorative process was suggested.

The staff refused this, citing issues with the proposed facilitator, and the DHB suggested an alternative facilitator.

On May 1, the staff asked the DHB to commence a formal investigation into their claims.

The DHB responded on May 5 suggesting an investigation await the outcome of the facilitation.

It stated that if the applicants felt otherwise, the facilitation would have to be set aside while the investigation proceeded.

The DHB’s letter said its executive leader of operations Kieran McCann would conduct the investigation if it were to proceed.

“Further correspondence followed which led to the DHB abandoning the facilitation and on May 14, Mr McCann wrote advising he was launching a formal investigation into the applicants’ complaints,” Loftus said.

McCann wrote: “It appears to us from the history, and in particular from the events of this year, that the four of you will not be able to work together with [the team leader] … For present purposes, we have reached the point as a result where we are considering the termination of your employment for ‘incompatibility’”.

Despite the staff demanding the investigation be conducted by an external and independent investigator, McCcan proceeded, with the four staff participating “under protest”.

On May 28, McCann’s investigation concluded the situation was no longer sustainable or salvageable and that it was best addressed by dismissing the four staff for incompatibility.

The staff were dismissed on June 9.

“While not the words they use, the applicants’ response to this is the DHB has engaged in a whitewash designed to protect a poor manager at the expense of a much larger number of her staff and a review will show this to be a flawed choice,” Loftus said.

The DHB’s lawyer Hamish Kynaston told the ERA the picture, as presented, remained incomplete until an investigation was completed.

This means the final outcome for the staff remains uncertain.

Loftus said cases involving dismissal for “dysfunctional employment relationship – incompatibility” were rare.

“Four cases simultaneously is, as far as I can find, previously unheard of.”

In similar cases, there needed to be a considerable effort put into trying to resolve the difficulties and trying to find alternatives to dismissal.

“The fact that only weeks passed between the DHB raising the possibility of dismissal for incapacity and dismissal would … suggest the applicants’ case may not only be arguable, but strongly so, although this view must be tempered by the fact the evidence is currently incomplete,” Loftus said.

Loftus concluded the DHB should grant the staff members’ requests to be temporarily reinstated, but to the payroll and not to a position within CSSD.

A spokesperson for the Wairarapa DHB said it would not comment on employment related matters.

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