Employer ordered to pay over $15,000 after unjustified finding of serious misconduct…

The Employment Relations Authority has ordered an employer to pay $15,300 after unjustifiably dismissing an employee due to serious misconduct.

The employee had taken two weeks off work due to workplace stress. Soon after his return the employer received two complaints of sexual harassment regarding the employee.

Following a short investigation the employer concluded that the employee’s conduct amounted to serious misconduct. The employer offered for the employee to resign, which the employee accepted as he believed he had no other choice.

The employee later raised a personal grievance of unjustified dismissal with the Authority, claiming he had been forced to resign and therefore constructively dismissed.

The Authority first considered whether the employee had been forced to resign.

The employer accepted that if the employee had not resigned, he would have been dismissed. The Authority concluded the employee had no choice but to resign, and therefore he had been constructively dismissed.

The Authority then had to consider whether the dismissal was justified.

The employer provided evidence that it had received two complaints of sexual harassment regarding the employee. These involved the employee asking about the complainants’ virginity, making sexual comments to them, and touching them inappropriately.

The employer notified the employee of these complaints and set up an investigation meeting. During the meeting, the employee accepted that he had made inappropriate comments towards the complainants. However, he provided further context to the comments and denied other allegations.

A second meeting was held with the employee, where he was advised that his behaviour amounted to serious misconduct. The employee was asked for feedback and then given the option to resign.

A final meeting was held, in which the employee provided his feedback and resigned from the job.

The Authority considered how the employer had concluded the employee’s actions were serious misconduct. Although the employer’s policies provided that sexual harassment could result in immediate dismissal, they also provided that this would only be in rare cases. In this case, the employer itself admitted that the employee’s actions were a fairly low level of misconduct.

Further, the Authority considered that the employer had not asked the complainants for further comment. This was despite the fact that the employee had provided context to his behaviour, as well as denied some of the claims.

Finally, one of the employer’s decision-makers was not present at the disciplinary meetings. This meant that the employee had no chance to put his case to that decision-maker.

The Authority concluded that, based on these failures, a reasonable employer could not have concluded the employee’s actions amounted to serious misconduct. Further investigation was needed, including providing the employee’s response to the complainants, and more deeply considering whether his actions amounted to serious misconduct.

The Authority therefore concluded that the employee was unjustifiably dismissed.

The Authority ordered the employer to pay $15,300 in compensation to the employee for hurt, humiliation and loss. This was discounted after accounting for the fact that the employee had admitted to some wrongdoing.

This case acts as an important reminder to follow the correct processes, even when an employee has admitted to wrongdoing. If you believe you have been treated unfairly, it pays to seek advice from a professional with experience in the area.

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