The Employment Relations Authority has found that an employer’s investigation of serious misconduct allegations was defective, but that the behaviour of the employee was so bad no remedies would be awarded. 

The employee had got into an argument with his supervisor and had stormed off slamming the door of a work vehicle, shattering the window.  The employer suspended the employee after giving him an opportunity to comment on the suspension and then conducted a serious misconduct investigation. 

The ERA held that most of the process followed by the employer was satisfactory, except that it did not properly investigate allegations by the employee that he reacted as he did because of constant bullying by his supervisor.  The employer’s failure to adequately investigate the allegations of bullying meant that its decision to dismiss for serious misconduct was wrong. 

The ERA went on however, to find that it would not award any remedies to the employee because of his behaviour.  In relation to the events being investigated, he had covertly recorded a meeting with his employer which, although not illegal, was a breach of good faith.  He had also lied to his employer about breaking the vehicle window.  In relation to other incidents he had unwanted, inappropriate and offensive interactions with other employees, some of which were of a highly sexualised nature.  He had also made unnecessary, inappropriate and excessive use of his mobile phone at work, including taking pictures of other employees and sending them to those employees outside of the workplace.  That conduct meant that it was inappropriate for the ERA to award any damages for the unjustified dismissal.

Alan Knowsley
Employment Lawyer