The Employment Relations Authority has ordered an employer to pay $12,000 after deciding that their dismissal of an employee was unjustified.

The employee raised a personal grievance claim against the employer after he was fired for being in the car when another co-worker drove under the influence of alcohol.

The employees were on a work trip and were staying at a local motel. Whilst at the motel, all three of them decided to have a few drinks. Later that evening, two of the employees went for a drive around the area. During this drive they were pulled over by the police and breath-tested. Both the driver and passenger were over the legal alcohol limit.

The employees reported this incident to the employer, who decided to initiate a disciplinary process on both employees.

The employee who was not the driver of the vehicle was issued a letter, inviting him to a meeting to discuss matters relating to his employment. This letter did not mention the disciplinary nature of the meeting.

During the meeting, the employer stated that it deemed the employee’s actions to be a breach of company policy, and that he and the other employee had put the public at risk.

A second meeting was held that day, in which the preliminary decision to dismiss the employee was made. The employee apologised, but did not provide any new evidence to show that he shouldn’t be dismissed.

At a later meeting, the final decision to dismiss the employee was made. The employee was issued with a letter recounting the employee’s actions and confirming his dismissal.

The Authority discussed that an employee must be provided with access to the relevant information and an opportunity to comment on a dismissal decision before it is made.

The employer failed to provide the employee with the evidence that they intended to use as proof of a breach of company policy. The initial letter issued to the employee did not disclose the employer’s primary issue of concern, nor did it inform the employee that he was under investigation for serious misconduct.

The employee was only informed of the allegations during the meeting, and was therefore not given more than a few minutes to come up with a response. This is not what a fair and reasonable employer would have done in the circumstances, and the Authority decided that the dismissal was therefore unjustified.

As well as this, the Authority went on to assess the substantive nature of the dismissal. They concluded that there was not sufficient evidence to prove that the employee breached the employer’s code of conduct. The Authority could not conclude that he had endangered any members of the public as he was merely a passenger in the car.

Furthermore, the Authority did not agree with the employer’s submission that the employee’s conduct impaired or destroyed the confidence or trust in the employment relationship, as the employee continued working for two weeks without incident, after the original incident occurred.

The Authority ordered the employer to pay $2,000 in lost wages as well as $10,000 in compensation for hurt and humiliation caused by the dismissal.

If there is confusion around the correct dismissal process, it pays to seek advice from a professional with experience in the area.

 

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Alan Knowsley & Matthew Binnie

Litigation Team
Wellington