Employer ordered to pay lost wages, and a penalty of $22,000, after insufficient investigation of serious misconduct allegations leads to unjustified dismissal…

The Employment Relations Authority has ordered an employer to pay $22,000 after upholding an employee’s personal grievance claim for unjustified dismissal. The employee brought the claim after their employer failed to properly investigate their “serious misconduct”.

Immediately before the COVID-19 lockdown, a co-worker claimed that the employee had assaulted her by “grabbing her ear and twisting it”. The employer did not investigate the claim until July 2020, when the employee stated that he had accidentally touched the co-worker’s ear.

The employer also investigated a claim of inaccurate time sheet recording, by obtaining a secretly recorded video from an employment investigator. The video showed the employee boasting about relaxed working hours.

The employee claimed that the conversation was only “bluff and bluster”, and that the employer had previously allowed him to take his lunch break at the end of the day and leave work early.

The Authority found that neither of these investigations followed a fair and reasonable procedure, which is required by an employer when dismissing an employee. The process was unfair to the employee as the employer had failed to genuinely consider the explanations of either incident before making a finding of serious misconduct. The investigations also provided insufficient evidence of serious misconduct.  

The Authority found that the video used for evidence of inaccurate time recording was either unlawfully obtained for its purpose or provided insufficient evidence of serious misconduct. This breached the employer’s good faith obligations.

Regarding the assault, both employees had provided conflicting evidence. The employer was entitled to believe one over the other, but gave no genuine reason for why they had done so.

The employer failed to give the employee’s response to the co-worker for input, suggest alternatives to the employee before dismissal, or provide clear reasons for the dismissal.

The Authority ordered the employer to pay the employee three months of lost wages and $22,000 in compensation for humiliation, loss of dignity and injury to feelings.

There is an important process which must be followed when dismissing an employee. If you are unsure of your obligations, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors