In a recent employment case a flight attendant was dismissed when the airline he worked for decided he couldn’t be relied on to follow safety procedures.  The airline said the flight attendant sat down in light to moderate turbulence and this was “serious misconduct” because it contravened safety regulations.

The Employment Court, and the Employment Relations Authority, disagreed with the airline’s conclusion. They said the decision was unfair and unreasonable.

The flight attendant was also a union representative and, as part of that role, he had been advocating for flight attendants to sit down in turbulence.

The Court made particular note of the fact the airline considered the employee’s union involvement as an “overarching concern,” during the investigation into the employee’s conduct, which directly preceded his dismissal.

This case highlights that it is crucial for employers to carefully consider the reasons for dismissing an employee before they do so.  The test of whether these actions are fair and reasonable is an important test.  At present the test is based on whether the employer’s actions in the circumstances were what a fair and reasonable employer would have done.

From 1 April 2011, the law will change and will actually stipulate the minimum actions an employer must take in order to meet the fair and reasonable standard.  These include sufficiently investigating allegations before taking action, raising any concerns with the employee, giving them a reasonable opportunity to respond to concerns and genuinely considering any explanation offered by the employee.

From 1 April 2011 there will also be a change in the test for what is fair and reasonable from what an employer would have done to what an employer could have done.  While this change in wording may seem minor, the implications could be far reaching.

For example under the “could” test the Court can recognise a range of reasonable responses to a situation and allow an employer to choose any one of them. In this case it might even have changed the outcome.

However, under the current law because the airline’s actions were deemed unfair and unreasonable they were ordered to reinstate the flight attendant, and pay him compensation and lost wages.

It is clearly very important to think carefully about your actions before taking them. Handled correctly, the airline may well have been able to dismiss the employee without the disruption and expense which undoubtedly would have been involved.