The Employment Court has ordered an employer to pay $100,000 after an employee suffered an unjustified dismissal.

The employee was at work when a child in his care was using inappropriate language on the phone. When the employee tried to take the phone, the child kicked him. In response to being kicked, the employee struck a stance and clenched his fist. It appeared as though the employee was preparing to punch the child.

The child complained about this conduct, and the employer launched an investigation into the incident. The employee was given a letter, informing him that he was at risk of suspension and was invited to a meeting to discuss the matter. At this meeting, CCTV footage of the incident was played and showed the clenching of the fist. The employee was suspended immediately.

The employee was then invited to a disciplinary meeting through a letter. This letter highlighted his possible misconduct and set out the topic of discussion for the meeting. This meeting, and a subsequent meeting, took place to discuss the potential for disciplinary action.

A month after the second meeting, the employee received a letter stating that the proposed preliminary decision was dismissal.

Following this letter, the employee was dismissed on the basis that he had breached the employer’s code of conduct.

The employee immediately raised a personal grievance of unjustified dismissal against the employer.

The Court had to decide whether the decision to dismiss was justified in the circumstances. The Judge decided that the initial investigation drew conclusions that could not reasonably have been drawn in the circumstances.

The investigator claimed that the employee was taunting the child, and was threatening and intimidating him based on the CCTV footage. The footage however had no audio, and the child was never questioned about the events. The Judge decided that the conclusions drawn were unreasonable in the circumstances, as they could not be made based only on the CCTV footage.

As well as this, the employee did not have the intention to punch the child. He clenched his fist for less than a second, and never made a move towards the child. The Judge decided that this did not breach the employer’s code of conduct and was therefore not sufficient to justify the employee’s dismissal.

The Court ordered the employer to pay the wages that he would have earned from the date of dismissal to the date of the judgment. This figure wasn’t given in the judgment, but is likely to be upwards of $60,000. The employer was also ordered to pay $30,000 as compensation for the hurt and humiliation caused by the dismissal. Finally, the Court ordered the employer to reinstate the employee to his former role, or a role no less advantageous.

If there is confusion about the correct process to follow when dismissing an employee, it pays to seek advice from a professional with experience in the area.


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Alan Knowsley & Matthew Binnie

Litigation Team