When being yourself amounts to serious misconduct

22 September 2017

by Nicole Johnston, Solicitor

‘Reason’ can be defined as a rational ground or motive, a sufficient ground of justification or a statement offered in explanation. Alternatively, it can be described as a rather good rock pop song from the early 2000s. Apologies if that song is now playing in your head.

In employment law, an employer is required to provide an employee with reasons for their dismissal, as well as taking the proper procedural steps before letting someone go. An employer’s decision must also be fair and justified. So while not liking an employee personally may be a reason to avoid them, it is not a valid reason for dismissing them.

 

Inventing clauses in employment agreement

In a recent Employment Relations Authority decision Ms U was dismissed from her role as a medical receptionist by Dr R. Ms U was given a dismissal letter that stated her performance bordered on serious misconduct and was asked to attend a meeting on 20 October 2016. At this meeting she was summarily dismissed.

While Ms U had been subject to a 90 day trial period under her employment agreement, this had already lapsed.

Instead, her employer attempted to rely upon an imaginary ‘probation period’, which he claimed ran for 6 months from the end of the trial period.

The Authority held that this was not correct, and there was no such clause in Ms U’s agreement. Additionally Dr R, not being a perfect person, also tried to get Ms U to resign. Because she refused she was immediately dismissed.

The reason is you

Unfortunately, it can’t even be said that Dr R never meant to do those things to Ms U. In providing a reason for her dismissal he told her he found no fault in her work, it was simply that hem the staff and patients did not like her. He basically said, the reason is you.

When Ms U brought a personal grievance for unjustified dismissal before the Authority, her employer failed to engage. While the employer requested an extension of time to file documents and even signed for the courier when the notice of investigation meeting was served, no evidence or documents were ever filed. Nor did the employer attend the actual investigation meeting.

Anxiety and fear a result of dismissal

The Authority concluded that the employer had not complied with any of his obligations. There was no evidence that he investigated his concerns about Ms U’s performance, and as such she was never given an opportunity to respond or contribute to the final decision regarding her dismissal. The Authority held there were serious fundamental breaches that resulted in significant unfairness to Ms U.

Ms U sought reimbursement for 37 weeks lost salary. Because she had been receiving a Work and Income benefit each week since her dismissal, her remuneration was reduced by this amount. Ms U was paid out actual lost remuneration plus $368.52 as the compulsory employer’s KiwiSaver contribution. Additionally Ms U received $13,000 compensation for the distress caused to her. She was 63 years old at the time of her dismissal. And even though she had a reason to start over new, Ms U was continually anxious and frightened about making mistakes at her new job.

Annoyance not a valid reason for dismissal

Reasons for dismissing an employee must relate to either issues with their performance, or actions that amount to misconduct. In order to dismiss an employee summarily, there must be serious misconduct that warrants immediate dismissal. And so I have to say before I go, if I turned up to the office tomorrow intoxicated and swore at my boss, she could probably dismiss me. However if I arrived and decided just to be myself, while my employer may not appreciate my sense of humour and find me annoying, that is not a valid reason to get rid of me.