The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after an employee was fired for swearing at customers.

The ERA found that the employee had been using colourful language with customers for several years without complaint and without the employer taking any action.  The ERA found that the employer’s decision to dismiss the employee for the colourful language was unreasonable given their previous attitude towards it.

The ERA held that the employer should have warned the employee not to continue using such language and have then only taken action if there had been a repeat of the behaviour.  That did not happen and the employee was fired for language used before she was warned to stop using the language.

Even though the employer relied on a customer complaint about the language that complaint related to a date before the warning was given.

The ERA awarded $4,000 in lost wages for the period the employee was out of work, plus $16,000 compensation for the hurt and humiliation suffered.

When carrying out a disciplinary process it is important to ensure that you properly put all allegations to the employee and ensure that your facts are correct.  In addition you can only discipline employees for matters that they know are wrong and it is not appropriate to ambush employees with allegations after having put up with the behaviour for several years.

If you want behaviour to change then you need to put a line in the sand and measure the employee’s behaviour after that point and not rely on incidents from before that point.

Alan Knowsley
Employment Lawyer