The Employment Relations Authority has upheld an employee’s personal grievance claim of unjustified dismissal after he was dismissed without any formal process. The employer was ordered to pay over $41,000.

The employee worked on a full-time basis for the employer. He had been instructed that if a job could not be completed, he was to leave a notice for the client, with the reason for the failure to complete the job.

The employee could not retrieve these notices from the work office, unless he waited fifteen to thirty minutes. The employee explained that he could not wait that long, because by that time his shift would have started.

Instead of using the required notices, the employee wrote the notices himself, providing his reason for the incomplete jobs.

The employer was not satisfied with this process and requested that the employee take two days off of work while he investigated. During that time the employee suffered serious stress and was given two weeks sick leave after providing a doctor’s note.

At the end of the two weeks the employer dismissed the employee. The employer explained that he had been given an “ultimatum” to either dismiss the employee or lose their business contract, and therefore had no choice but to dismiss the employee.

The employee brought personal grievance claims of unjustified dismissal and unjustified disadvantage to the Authority.

When dismissing an employee, an employer must act fairly and reasonably in all of the circumstances. This is assessed based on the resources available to the employer, but will usually require that the employee is informed during the process and is invited to give feedback on the dismissal.

In this case, the Authority decided that the employee had been unjustifiably dismissed.

Despite the fact that the employer had little resources available to him, he had failed to complete minimum steps required in a dismissal process. The employer failed to properly investigate all of the claims made against the employee, including that he had been writing obscenities in the notices given to clients. The employer also failed to inform the employee of all of the allegations against him.

These failures meant that the employer and employee could not have a fair and informed discussion about the issues or the dismissal. The employee was not given a chance to respond to the allegations or have his feedback genuinely considered.

The employee argued that he had been unjustifiably suspended while the employer investigated the claims and for the two weeks before his dismissal.

The Authority found that the employer and employee had agreed that the employee would take time away from work while the allegations were investigated. Further, the employee had two weeks off prior to dismissal for sick leave, not because he was suspended.

The Authority decided that the employee’s claim of unjustified disadvantaged was not successful.

The Authority also found that the employer had failed to keep accurate wage and time records, which is required under New Zealand employment law.

The Authority ordered the employer to pay $21,000 in lost wages and remuneration, $16,000 in compensation for the hurt and humiliation suffered by the employee, as well as $4,000 in penalties for failing to meet minimum employment standards.

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


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Alan Knowsley and Hunter Flanagan-Connors