The Employment Court says the Niwa company process around its sacking of a cook from the RV Tangaroa was "wrongfooted from the outset". Photo / Dave Allen
The Employment Court says the Niwa company process around its sacking of a cook from the RV Tangaroa was "wrongfooted from the outset". Photo / Dave Allen
A former cook on a government research vessel has succeeded in getting more compensation by taking her fight up a level, but it's still well short of the $100,000 she wanted.
Kim Ashby's distress compensation increased by $15,000 from an initial $20,000 with the Employment Court reinforcing an earlier decision that the employer was largely to blame for the reasons leading up to her dismissal.
Judge Joanna Holden said in a decision released last week that it was not surprising Ashby felt she was "treated like a criminal rather than the victim" in this matter.
The judge found the employer's process was "wrongfooted from the outset"; that it failed to recognise sometimes extreme and isolated working conditions and that Ashby had done nothing wrong.
Ashby worked for the company that manages the research vessels of the National Institute of Water and Atmospheric Research (Niwa).
She was dismissed in December 2015 for "incompatibility", in relation to events dating back to 2009.
The Employment Relations Authority found she was unjustifiably dismissed and awarded her $20,000 in compensation plus three months' lost wages.
Ashby then challenged the decision, seeking an uplift in remedies including lost wages from the date of dismissal until the date of hearing, and distress compensation of $100,000.
The Employment Court awarded 12 months' lost remuneration, and $35,000 in compensation, in light of the significant impact from the process leading up to her dismissal, and then the loss of her job.
A former ship's cook succeeded in proving a complaint of sexual harassment by the first mate, but she went on to lose her job. Photo / 123RF
The company, Niwa Vessel, is a wholly owned subsidiary of the Crown Research Institute Niwa, which owns and operates Niwa's research vessels.
Ashby began working as a cook on the RV Tangaroa in 1996 and became permanent in 2003.
Crews worked in two shifts, month-on, month-off over the year.
In 2009 Ashby's formal complaint of sexual harassment by the first mate at the time was upheld, after it was found he had made inappropriate comments and had put inappropriate pictures on her computer.
The investigation meeting showed the first mate had offered to move to the second swing shift, but the offer was not taken up.
In 2011 the first mate was promoted to master, which meant Ashby then had to report to him.
Although there were no further incidents of sexual harassment, in March 2014 Ashby raised concerns about the master's alleged bullying and asked to be moved to the second swing shift.
The company was unable to accommodate the request when the cook on the other shift did not want to move.
A few months later Ashby learned from the ship's master that an email containing details of her 2009 complaint had been released to a small group of Niwa staff members, leading her to believe the complaint had been reopened.
The company said the attachment had been mistakenly sent, for which it apologised, and that it realised its error early enough to have retrieved the email before most opened it.
Ashby engaged a lawyer and laid a complaint about the master's failure to properly communicate.
She had not wanted to cause issues and said she genuinely loved her job, and asked again to be moved to the second swing shift.
Ashby then went on sick leave. The company engaged an independent facilitator to work with her and the master to try to restore their relationship.
She planned to join a voyage leaving Wellington in January 2015, but her lawyer contacted the company saying she was suffering from various medical conditions arising from acute stress.
The company was asked again to consider changing its roster system so Ashby and the cook on the other shift could swap.
Niwa says it accepts the Employment Court's findings and hopes a former research vessel cook can now "move forward". Photo / Niwa, Stuart Mackay
Mediation and further efforts to resolve the matter followed, including the company engaging an independent investigator to carry out a formal investigation into Ashby's allegations of bullying.
The claim was not found, but the master was advised to undergo training and to consider different communication styles and management approaches for different situations and people.
The Employment Court was surprised the investigator also said the relationship between Ashby, the master and Niwa Vessel was irreparable and suggested discussions should start with a view to exiting Ashby.
By September 2015 Niwa Vessel felt it had exhausted all options. Ashby was told it seemed likely that her relationship with the master had become "irreconcilably incompatible" and that the breakdown was "substantially attributable to her".
She once more asked to be transferred to the second swing shift, but it was declined again.
Her employment was terminated on two months' notice.
The Employment Relations Authority said although there was a high degree of incompatibility between Ashby and the master, it was not satisfied it was irreconcilable.
The authority also found that the problems between Ashby and the master were not substantially created by her and that the incompatibility was mutual.
It said Ashby had not been treated fairly, and the employer hadn't taken sufficient steps to help repair the relationship until after she had begun sick leave in September 2014.
Ashby declined to comment when approached by Open Justice.
In the subsequent court hearing, Judge Holden said the dismissal left Ashby quite unwell.
The court also disagreed with Niwa Vessel's argument there had been no error around the authority's $20,000 compensation award, given that was the amount sought in the statement of problem.
Judge Holden said there was no legal requirement for an applicant to specify how much compensation they sought.
The court considered that Niwa Vessel should have arranged for Ashby to work on a different shift to the master.
