Unjustified dismissal following conviction…

The Employment Relations Authority has upheld a personal grievance for unjustified disadvantage and unjustified dismissal after a cleaner was dismissed following getting a conviction.  When the client company of the employer heard of the conviction it required the employer to remove the employee from its work site.  The employer undertook to do that but failed to give the employee any opportunity to comment on the client’s concerns before doing so.

The employer tried to find alternative work for the employee, but because of the conviction could not place him at any other client sites and he was therefore dismissed on one week’s notice.

The Employment Relations Authority found the dismissal was unjustified. This was because the employer should have tried to preserve the employee’s role at the client. It should have pointed out that employees have statutory rights that cannot be ignored and that the employer could not simply bow to demands before it had investigated the matter and given the employee an opportunity to comment.

The ERA found that suspending the employee without providing information or reasons for the suspension was an unjustified disadvantage and that the dismissal was unjustified.  It awarded $9,454 lost wages plus $12,000 compensation.

Interestingly, it refused to reinstate the employee to his position with the cleaning company because no other clients of the employee would accept the employee with the convictions that he had.

If the employer had followed a proper process and given the employee an opportunity to comment before it suspended and before it dismissed, then it is likely that the dismissal would have been justified because of the inability to place him with any clients.




Alan Knowsley
Employment Lawyer
Wellington