The Employment Court has found that a Chief Executive of an international insurance company was justifiably dismissed from his position for serious misconduct (failing to follow internal processes for accepting buildings for cover in an earthquake prone area).  The Employment Relations Authority had originally also found that there was no unjustified dismissal and the Chief Executive sought a new hearing in the Employment Court.

The Chief Executive claimed that the employer had pre-determined the outcome, that he was treated differently to other employees also involved in the misconduct, that the decision to dismiss him was unreasonable and that a poor process had been followed because he was not told of a preliminary finding and given an opportunity to comment and that he was not told that the company lawyer would be present at a meeting when he was not represented.

The Court found that the employer had not followed a perfect process but that no unfairness had arisen from the process followed.  It held that there was no predetermined outcome, no disparity of treatment.

It found the decision made by the employer was one a reasonable employer could have made, both as to the serious misconduct and the decision to dismiss without notice. 

It also found that there was no need to hold a separate meeting in relation to their decision to dismiss, as the employee had had an opportunity to comment on the decision to dismiss at the meeting when he was advised of that outcome.

The Court also held that it was not an unfair process to have a company lawyer present as an observer (who did not speak during the meeting) and that the employee had been told on several occasions of his right to have a representative or lawyer present, but chose to not have anyone present.  If he had been taken by surprise by the company having its lawyer present he could have asked the company to adjourn the meeting so he could get representation, but he did not do so. 

The Court held that just because other employers might not have decided to dismiss the Chief Executive in these circumstances does not make the decision to dismiss unreasonable.  It was within the range of decisions that a reasonable employer could make.

The Court did comment on the fact that several other senior executives sent emails around the company indicating that the employee was to be dismissed for his behaviour before the investigation was carried out.  The Court however decided that these executives did not form part of the decision making process into the dismissal and that the person who did make the decision on dismissal was not influenced by those emails. 

He investigated the matter properly and reached his own conclusions without influence from those other executives.  The Court issued a warning that employers should ensure that all senior executives understand that they should not interfere in disciplinary processes and that they should allow the person charged with investigating the matter to carry out that investigation without trying to give their own views as to the outcome prior to the investigation being carried out.

Alan Knowsley
Employment Lawyer