An engineer took a personal grievance to the Employment Relations Authority after he was dismissed by his employer on grounds of misconduct.

The engineer had relocated with his family to New Zealand to work for a large company.  After less than a year in employment he was granted extended annual leave to holiday in his home country. While overseas the engineer took the company phone with him.

The company had become aware of the extraordinary charges accruing when they received an account while the employee was abroad. The employer contacted the engineer and instructed him to desist in using the phone, which he did.

The engineer then neglected to inform his employer he was not going to attend work on his expected date of return, as he had delayed his return by a day.  It was only when his employer rang to see why he was not at work did he inform them he required an extra days leave. The engineer was told to ensure he reported for work the next day.

A third issue arose when he presented the next day, in a clearly fatigued state.  He had driven a work vehicle for a number of hours to attend the work site, with only a few hours sleep. That day he was required to inspect an expansive worksite. Due to his condition he was offered a motel at the company’s expense in order to recuperate before driving home. He declined that offer and drove home again in the company car despite the concerns over his fitness to drive.

Shortly after, he was informed the use of his phone, his failing to report as required, and his driving of a work vehicle in an unsafe state, were issues of misconduct.  He was asked to attend an employment meeting, to be convened a couple of days away.  He was properly told he could bring a support person or representative but when he sought more time to arrange for someone was told by HR they would arrange a support person for him. That person was said to have previously assisted another employee with disciplinary meetings, although they had no particular legal expertise themselves and were unknown to the employee.

At that investigation meeting the employer put the above three issues to the engineer for response. Additionally, without pre-waring, they put two further concerns to him regarding his performance.  Shortly after that meeting the employer announced their decision to dismiss him.  The engineer took a claim for wrongful dismissal.

In its decision the Employment Relations Authority (ERA) found the company had failed to follow a fair process. The employee should have been given a proper opportunity to arrange a support person or representative of his choice and not pressured to attend the disciplinary meeting at such short notice.  He also should have been made aware of all the allegations that were to be put to him at the disciplinary meeting, and not had the issues around his performance included there, when he was not prepared to respond to those properly.

The ERA deemed the employer also failed to provide the employee with the full information they were relying on in respect of the allegations: Nor did they provide him with an adequate opportunity to comment on the allegations before they arrived at their decision. 

Consequently it was found there were significant flaws in the process which unjustifiably disadvantaged the employee, as the process was unfair and denied him natural justice.

However, despite the above finding, the ERA decided the actual dismissal was not unjustified. It found the engineer’s absence from work, without authority, was a clear breach of the code of conduct, and so his dismissal was found to be justifiable. 

The ERA awarded the engineer $10,000 compensation for his loss of dignity and injury to feelings, however that award was reduced by 40% to account for the employee’s conduct having contributed to the situation.