What was the postcard of, or what can the employee have said in the postcard that was offensive enough to have cost her her job?  The answer is that it was not the picture (British Houses of Parliament), nor the content (nothing offensive), but just sending the card.

The employee took a personal grievance against her employer and has won her unjustified dismissal claim in the Employment Relations Authority plus over $11,000 wages and $8,000 compensation.

The employee worked for a company which provided tutors in prison.  She had been employed for many years.  When on holiday overseas she sent a postcard to one prisoner of the British Houses of Parliament as part of their educational work.  The postcard was intercepted and the Prison Manager revoked her ability to enter the prison because of a breach of the “Nothing in, nothing out policy”.  The Manager thought the tutor was compromised, which could affect her safety and prison security.  As her ability to enter the prison was revoked, her employer terminated her employment.

The ERA held the dismissal to be unjustified because the employer should have taken more positive steps to protect the employee by appealing the Manager’s decision.  An appeal process was included in the contract but not invoked.

The employer should have approached prison management after the revocation decision and not just dismissed the employee.  The employer failed to have any contact with the prison decision maker.

The ERA also held that the employer failed to advise the employee to get legal or advocacy advice, and not just a support person (her husband), due to the legal aspects of the triangular relationship (employee-employer-prison).  Until now the obligation has been to advise of the right to a support person (not specifying a lawyer or employment advocate) and the employer did that.

This decision will have effects far beyond the prison environment because of the multitude of circumstances where contractors are engaged by a third party employer to provide services to another.  The client always has the right to require the removal of a contractor’s employee.  The employer must ensure they act fairly to their employee by exercising all rights of appeal and challenge with the client before deciding to dismiss.

If you need help with your obligations in these three-way employment relationships give me a call on (04) 473 6850.