A personal grievance for unjustified disadvantage and unjustified dismissal has been upheld by the Employment Relations Authority.  There was a dispute between the employer and employee which led to swearing and abusive language from the employee to the employer in front of other staff and customers.

The employee was suspended and disciplinary allegations raised in a letter.  The employee did not dispute the facts but challenged the process followed for the suspension and dismissal.

The ERA held that the suspension was unjustified as there was no opportunity given to the employee to comment before the decision was reached.  The ERA said that if the suspension had been immediately after the swearing and abuse it would have been justified and not required an opportunity for input due to the safety concerns.  However, the decision was delayed until later when the employee had cooled down and so an opportunity for input should have been given.

The ERA held that the employer could have dismissed for the swearing and abuse but it failed to properly investigate the employee’s claims relating to the process and therefore was unjustified.

An award of $1,000 was made but this was reduced by 50% due to the employee’s own misconduct.  No lost wages were awarded because the employee failed to take adequate steps to find alternative work.