Dismissal by text after holidays unjustified…

The Employment Court has rejected a challenge by an employer to the Employment Relations Authority finding that an employee had been unjustifiably dismissed.

The employer alleged that the employee was due to return to work after the Christmas holidays on 8 January and failed to do so.  He dismissed the employee by text on 9 January.

The Court found that there was no proper process followed by the employer to raise allegations of not returning to work on the correct date with the employee.  Because the allegation was never raised with the employee, he was given no proper opportunity to respond to it before the employer decided to dismiss him by text.

The Court also said that even if the matters had been raised by the employer with the employee and a proper opportunity given to respond, that the failure to return would not have justified a dismissal in this case.  The employer attempted to say that prior warnings had been given for absences, but provided no proof of any of these prior warnings.

The employer also attempted to justify the dismissal by showing that he had made phone calls to the employee later in the week, after he failed to return, to ascertain why he had not returned.  The Court found that those phone calls were irrelevant, because they followed the dismissal and did not precede it.

The employer also tried to justify the dismissal on the basis of a social media post by the employee, which alleged that the employee knew he was supposed to return to work the previous week, but did not bother doing so.  The Court found that the social media post was also irrelevant because it was not made until after the dismissal and so the employer could not have taken that into account in reaching its decision to dismiss.

If you want to deal with a disciplinary issue, you must tell the employee of the allegations and give them a proper opportunity to respond before you reach any decisions.  A failure to do so will be fatal to the decision to dismiss.  A free guide to handling a disciplinary process is available on our website.




Alan Knowsley
Employment Lawyer
Wellington