An employer has been ordered to pay an employee over $8,000 after not following a proper process when suspending an employee and for unfair dismissal.

The employee, a baker, was seen by a manager throwing a ball of dough at another employee. The employee said it was a joke and that the behaviour occurred on a daily basis by other staff.

The employer considered that the behaviour amounted to serious misconduct because of the risk of contamination of the bakery’s products and the risk that an employee operating machinery would become distracted by the behaviour and cause an accident.

A meeting took place moments after the incident between the employee and the owner/director. The employee did not offer any explanation at the meeting. The employer suspended the employee, giving the employee 30 seconds to leave the building.

The meeting was rushed and was undertaken without an opportunity for any of the parties to ‘cool off’. The meeting was not held at an appropriate location. Instead it occurred outside the break room where other staff could overhear what was going on.

The ERA said that although the employer had reason to suspend the employee, the process taken in doing so was unfair to the employee.

The employee was invited by email to attend a disciplinary meeting. The employee, however, was not expecting any correspondence from the employer and did not check his emails. This misunderstanding may have been caused by a lack of clear communication between the parties, particularly as the employee’s first language was not English. When the employer had not heard from the employee for some time, the employee’s employment was terminated.

The ERA said while the dismissal process was fair because the employee did not respond in time, the employee’s behaviour did not amount to serious misconduct. As a result, the dismissal of the employee was deemed to be unfair.

The ERA said the employee’s actions were blameworthy and contributed to the situation giving rise to the dismissal. The ERA awarded a reduced sum of $4,191 for lost wages and $4,000 for hurt and humiliation suffered by the employee.

Serious misconduct is behaviour which undermines the trust and confidence between the employer and the employee. Serious misconduct typically includes behaviour such as violent behaviour, dishonesty, theft, fraud, and actions endangering the health and safety of the employee or others.

Alan Knowsley

Employment lawyer