Unjustified suspension and dismissal lead to penalty

The Employment Relations Authority has upheld a personal grievance claim for unjustified disadvantage and unjustified dismissal and awarded lost wages, compensation and a penalty against the employer.

The employee was required to work Saturdays as part of his employment agreement but he decided he would not work them and sent an email refusing to do any more Saturday work.  The employer commenced a disciplinary process in relation to the refusal to work and suspended the employee pending that investigation.

The employee responded by sending a series of emails both internally and externally that were intemperate and inappropriate.  The employer added those emails to its list of serious misconduct allegations but the letter raising those was not seen by the employee until after the first disciplinary meeting.  A further meeting was held the next day regarding the new accusations.  The ERA held that the decision to suspend was predetermined as it was made before seeking the employee’s comment on the suspension.

The employer was held to have failed to ask the employee about the emails sent internally and externally so he was not able to give an explanation.  The reasons for his dismissal claimed that he accepted he was wrong to send the emails but in fact the notes of the meetings did not record any such admission and the allegations had not even been put to him at the time he as supposedly confessing.

The ERA also held that putting the new serious misconduct allegations and requiring a further meeting at 9 am the next day did not give the employee time to seek independent advice on them.

The new (email) concerns overtook the refusal to work Saturday’s allegation but the employee was never advised of this or given a proper opportunity to respond.

He was also not given any opportunity to comment on whether dismissal was reasonable and not advised of his right to bring a representative to the meetings.

The employer was penalised $2,000 for its breaches of good faith for the way it conducted the disciplinary process and ordered to pay the employee lost wages for the time he was suspended and from when he was dismissed until he found a new job.  Compensation of $6,800 was also ordered for his hurt and humiliation.  There was a 20% reduction in lost wages after his dismissal due to his conduct regarding the emails sent to external parties.