An Employer has been ordered to pay a significant sum after the disciplinary process it undertook was found to be faulty.

The Employee, a care worker at a residential care facility, took a small packet of potato chips from a locked cupboard containing refreshments intended for the residents of the care facility. The Employer had previously raised its concerns about food and other items going missing.

The Employee admitted taking the potato chips but denied any dishonest intention.

The Employer conducted a disciplinary process where it raised its concerns and asked the Employee to respond. The Employer considered that the Employee’s actions amounted to serious misconduct. Although the Employment Relations Authority held that this outcome was open to the Employer, they disagreed with the Employer’s decision.  

The Employer said that it had lost the necessary trust and confidence in the Employee, because if the Employee was willing to take food intended for residents, there was a risk that residents personal possessions or other items could also be taken. However the ERA held that there was a significant difference between a small packet of potato chips and the personal possessions of residents.

The Employer’s strict view on employees’ consumption or removal of items which were intended for residents meant that the decision to dismiss the Employee was, in part, pre-determined.

The Employer was ordered to pay the Employee three months’ lost wages and compensation of $18,750 for humiliation, loss of dignity and injury to feelings. The ERA took the Employee’s behavior into consideration and reduced the award by 25%. 

Employers must consider the proportionality of the response when an employee is sanctioned during the disciplinary process. In this case, the Employer took a ‘hard-line’ approach and dismissed the Employee for taking a small packet of potato chips, worth less than 50 cents. This was not a proportionate response by the Employer.

There can be severe consequences when an employer does not get the disciplinary process right…even when an employee is at fault in some way.

Ben Ruback

Solicitor

Wellington