Swearing not sufficient for dismissal…

An employee who worked as a shift manager has had his personal grievance claim for unjustified dismissal upheld by the Employment Relations Authority.

The employee swore and threatened to resign from his position after he was told he could not take weekends off without using annual leave during his performance review meeting.

The ERA held that the employee’s conduct would not be considered misconduct by a fair and reasonable employer. The ERA found that because there had been previous contentions with the employee surrounding leave the employer should have notified him that leave would be determined at the meeting. The ERA also noted that because swearing was common in the workplace, and the employee had never been previously warned or told his behaviour and attitude towards the company was inappropriate he could not be considered rebellious.

The ERA found that the employer failed to act as a fair and reasonable employer by failing to alert the employee to the company disciplinary policy and by failing to instigate a proper investigation with appropriate neutral decision makers. The ERA also noted that the employer did not consider the employee’s responses when deciding whether to terminate him.

The ERA awarded three months lost wages plus $5,000 compensation for hurt and humiliation. These awards were reduced by 33 per cent for contributory behaviour.