Workplace democracy has prevented a dismissed worker from being reinstated. The Employment Court declined the worker's application for interim reinstatement pending the outcome of her unjustified dismissal claim after work colleagues said that they did not want to work with her. This meant that, even if she won her case, there was no real prospect of permanent reinstatement so she should not be reinstated on an interim basis either, the Court said.

Charge Nurse, Pauline Trembath had responsibility for the orthopedic theatre nurses at Middlemore Hospital.

In mid 2000, the Hospital's Group Human Resources Manager, Brendan Ryan, interviewed orthopedic nurses after concerns were raised about Ms Trembath's management style. He identified concerns relating to Ms Trembath's reluctance to delegate, or to impart information ranging from here mere whereabouts to professional information that would assist nurses in her charge. Ms Trembath was perceived as being autocratic and intimidating, and unavailable to nurses. The Hospital believed that nurses were transferring to other services or leaving because of her management style.

On 5 September 2000, Mr Ryan met with Ms Trembath and discussed matters with her, although not in a disciplinary context.

On 29 June 2001, the Hospital's Human Resources Manager, Fiona Johnston, met with a staff nurse who was distressed about an incident involving Ms Trembath during an orthopedic procedure. Shortly afterwards three more staff nurses complained about Ms Trembath's leadership style and their resulting unhappiness in their work. As a result, the Hospital asked Ms Trembath to prepare a plan for the development of her management and leadership style.

On 26 September 2001, the Hospital's Manager of Surgical Services, Janet Cohen, met with Ms Trembath to discuss the development plan, which included her attending a number of leadership and management courses.

Ms Trembath attended two of the planed courses. However, on 23 October 2001, another staff nurse resigned citing Ms Trembath's management and leadership at the reason for her resignation. The Hospital eventually managed to persuade the staff nurse not to resign by transferring her to another specialty.

On 7 November 2001, Hospital officials held a disciplinary meeting with Ms Trembath to discuss the latest complaint, and the other complaints they had received. After listening to Ms Trembath's response, the Hospital concluded that staff relationships were so seriously affected that they faced a situation in which either Ms Trembath left of other experienced staff nurses would leave. It dismissed Ms Trembath.

Ms Trembath sued the Hospital for unjustified dismissal. Because her claim could not be heard until March 2002, she applied to the Employment Relations Authority for reinstatement to her former position in the meantime. She also indicated that she was willing to carry out other duties within the Hospital, and to relinquish her managerial responsibilities if interim reinstatement to her former position was declined.

The Authority, with the consent of the parties, spent two days at the Hospital interviewing 16 orthopaedic nurses and the Clinical Head of the Department to ascertain their views about Ms Trembath's reinstatement application. "The cumulative effect of [the] discussions was overwhelmingly to the effect that there would be serious unhappiness and disharmony affecting all of the orthopaedic staff nurses were Ms Trembath's [application for interim reinstatement] granted" the Authority said. Because of this, the Authority declined to order that she be reinstated to her former position pending the determination of her personal grievance case.

However, matters did not end there as Ms Trembath had indicated a willing to carry out, on an interim basis, duties other than those of a charge nurse. The Authority ordered that she be reinstated to a project position with no managerial or charge responsibilities and no authority to give directions to staff members.

The Hospital appealed to the Employment Court. It argued that the Authority had no jurisdiction to order reinstatement to a non-existent position, nor to require it to create a new position into which to reinstate Ms Trembath. It also argued that, given the Authority's findings about the disharmony that Ms Trembath's reinstatement would cause in the workplace, there was no real prospect of permanent reinstatement so she should not be reinstated to any position prior to her personal grievance being determined.

The Employment Court disagreed with the Hospital's argument regarding jurisdiction and said that the Authority could, in an appropriate case, order interim reinstatement to a position other than that originally held by a dismissed worker. However, it was not appropriate in this case to do so. "[T]here was no real prospect of permanent reinstatement [therefore] it cannot be said that there is a strongly arguable, or even arguable case for reinstatement. It must follow that neither is there licence to direct a new form of interim employment in the circumstances" Judge Barry Travis said.

Ms Trembath must now wait for the Authority to determine her personal grievance claim in March 2002. Given the Court's comments regarding there being no real prospect of reinstatement even if she succeeds with her claim, reinstatement is unlikely to be ordered.

This case illustrates one of the fundamental differences between the old Employment Tribunal and the new Employment Relations Authority. The Tribunal made decisions based on evidence presented to it by the parties whereas the Authority has the ability to make its own inquiries. In this case, the Authority even went so far as to visit the workplace and interview Ms Trembath's work colleagues to determine for itself whether interim reinstatement should be ordered.