Employees continually awarded compensation despite poor conduct…

Employees continue to win awards from the Employment Relations Authority for unjustified disadvantage and unjustified dismissal despite being at fault for their behaviour.

These awards can be quite significant, but they can be avoided. They tend to arise where the employee has done something that deserves to be dealt with as serious misconduct but the employee rushes in to deal with the situation without getting the process right. As a result, the employee suffers a disadvantage or a dismissal and is awarded compensation. 

The errors can be for:

• suspending an employee without consultation before making the suspension decision,
• predetermining the outcome of the disciplinary process without first hearing the employee’s response,
• reaching conclusions on the allegations without ever putting those to the employee,
• alleging one type of misconduct but finding the employee guilty of something different without inviting a response on the new allegations,
• failing to invite the employee to have a support person assist them and attend meetings,
• jumping to a dismissal decision without giving any opportunity to comment on possible outcomes,
• finding serious misconduct when the facts only justify misconduct,

and so on.

In one case the employee, a baker, was seen by the employer 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 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 and required him to immediately 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 then 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 his 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 reduced the sums awarded for lost wages and hurt and humiliation suffered by the employee because of the employee’s contribution to the situation.

If the employer had slowed down and taken advice they could have avoided the awards of compensation completely.

They would have been advised:

• to give an opportunity to comment on a possible suspension first,
• to hold the meeting in a private space,
• to make sure the employee received the allegations,
• to advise them of their right to a support person,
• to pitch the level of seriousness at an appropriate level and,
• to deal with things consistently between employees.

Employers continue to get the process wrong all the time and it is costing them financially when they should have proper systems in place, so they know the steps to take and follow them.

Particularly in these tough financial times these are costs that can be easily avoided with that money retained on the bottom line.