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Home / New Zealand

Former head cook wins unjustifiable dismissal case against Niwa

Lincoln Tan
By Lincoln Tan
Multimedia Journalist·NZ Herald·
10 Oct, 2019 07:16 PM4 mins to read

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Kim Ashby was head cook on the RV Tangaroa. Photo / File

Kim Ashby was head cook on the RV Tangaroa. Photo / File

Niwa is to pay a former head cook on its research vessel Tangaroa $20,000 and three months wages for unfair dismissal.

Ex-employee Kim Ashby wouldn't work with a senior crew member Evan Solly who she claimed bullied her.

Ashby complained about Solly sexually harassing her in 2009 when he was First Mate, and he was given a warning and apologised. But she said the bullying continued and felt that was punishment for her having made the complaint.

Solly was made Tangaroa's master in 2011.

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Due to a back injury suffered while working on board, Ashby was on sick leave until September 2012. She later complained about not being medically evacuated.

She went on sick leave again in 2014 and blamed Niwa for not removing her from working with Solly.

In 2015, Ashby was dismissed due to incompatibility because she refused to work with him.

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The Employment Relations Authority found Ashby had been unjustifiably dismissed.

It ordered Niwa Vessel Management Ltd to pay her three months' wages and the $20,000 she claimed for humiliation, loss of dignity and injury to her feelings.

Niwa (National Institute of Water and Atmospheric Research) said her relationship with Solly was irreconcilably incompatible and attributed that mainly to Ashby.

But authority member Vicki Campbell found an investigator reported that the incompatibility was mutual.

"I am not satisfied Niwa has established that the incompatibility was irreconcilable," Campbell said.

"I have concluded Ms Ashby did not behave in a blameworthy or culpable way."

Campbell found Niwa had treated Ashby unfairly.

Ashby had not found employment at a comparable level since leaving Niwa, and the effect on her had been significant.

Besides just being affected financially, she also had trouble sleeping and was treated for skin sores and hair loss.

Her first complaint in 2009 for comments Solly made to her and putting inappropriate pictures on her computer formed Ashby's opinion of him for the rest of her career with Niwa, Campbell said.

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Ashby was disciplined in 2011 for serious misconduct when a night watchman saw her returning to the vessel intoxicated.

Solly's son was made second cook while Ashby was on sick leave, and she and other crew members had problems with his performance. Her direct communications with Solly stopped and this was usually done through his son.

Niwa refused to move Ashby to a shift different to Solly, and Campbell said it could have moved the head cook on another shift to accommodate Ashby.

"Niwa has invited me to also take into account as a contributing factor Ms Ashby's refusal to consider any option other than a move to the second shift," Campbell said.

"The difficulty with this...is that Niwa did not provide any alternative options."

Campbell also found Niwa failed to follow up on a psychologist's recommendation that Ashby returned to work while Solly was on his three months leave of absence.

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Ashby felt her reputation was harmed when a hair was found in breakfast food, but Solly did not respond to a second cook taking responsibility.

An independent investigator also found Solly's approach to be unprofessional and insensitive.

She learned from Solly in August 2014 that an email about her 2009 complaint against him had been mistakenly attached to an email the general manager had sent to Solly and five Niwa scientists.

A month later, she went on sick leave and did not work on the vessel again until her dismissal in December 2015.

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