Dismissal unjustified for poor process and not warranted

The Employment Relations Authority has found an accounting firm liable for an unjustified dismissal of an accountant.

The accountant was accused of putting confidential information in her rubbish bin rather than the destruction bin.  She was also accused of emailing client information to her personal email address and excessive use of the office email for private matters.

The Authority found that the employer had failed to give the employee an opportunity to comment on her suspension before it was imposed which was unreasonable.  In addition there was no power to suspend in her employment agreement so unless there were genuine safety concerns requiring suspension there was no power to do so.  $3,000 compensation was awarded for the unjustified suspension. The employee was dismissed for serious misconduct on all three allegations but the Authority found none would justify a dismissal in the circumstances.

The putting confidential material in the rubbish bin should have resulted in a most a final warning.  The sending material to her home email was to continue to work on the material at home and not theft as was suggested.  Her actions did not justify a dismissal.  In addition the process followed had not been fair as she was expected to respond in far too short a timeframe (the next day) to get proper advice and assistance and prepare her response.  Also the employer’s decision to dismiss was made too quickly without adequate consideration of the response provided.

The allegation of excessive use of the firm’s email for personal use also failed the firm policy allowed reasonable use but it was never explained what amounted to reasonable.  The sending of one email per day was not excessive.  The inclusion of the firm’s sign off was automatic and required by firm policy so was not a disciplinary matter.  If of concern the employer should have raised those concerns with the employee both as to content of personal emails and the amount sent.

The employee was awarded $6,100 plus $6,200 lost wages for the six weeks it took her to find another position.

Remedies were reduced by 7.5% due to the employee’s contribution for placing confidential material in the wrong bin, sending personal emails and failing to seek permission to work from home and send material to her home to do so.

Alan Knowsley
Employment Lawyer 
Wellington