A number of questions had to be answered by the Tribunal.
1. What was the employment relationship – important when determining remedies.
2. Was M dismissed; and if so was the dismissal justified in all the circumstances, and;
3. If not, what remedies were due to M?
Employment Relationship
M said he intended the employment agreement to end when all the lambs on the farm were sold and argued the employment was for a “fixed term”. However, the Employment Relations Act requires that if an agreement is “fixed term” the employer must put in writing the way in which employment will end, and the reasons for it ending. Since this had not been done, the Authority had no alternative but to hold that the employment was permanent. This made a big difference to the claim for lost wages as we will see below.
Was M dismissed?
M claimed he did not intend to dismiss D. Not surprisingly, the Authority found he had dismissed D. The big question was whether the dismissal was justified.
It is understandable a parent would focus on his child’s welfare (and all parents out there will say that they would have done the same thing). However, as an employer M failed to properly address the employment situation.
There was no investigation by M at any time into the events leading to D being sent away – this was fatal.
M was ordered to pay remuneration of $6,571.52 gross wages, compensation of $12,000, and to add insult to injury a further $917.30 gross for holiday pay.
So what should he have done?
Had an employment agreement. If the agreement was a fixed term agreement then lost wages would have been limited to that fixed term. An agreement would also have had a suspension clause allowing M to suspend D.
Kept a written record of warnings and not acted in the heat of the moment firing D that night. D should have (if there had been agreement or at least after discussion if there was an employment agreement) been suspended and then there should have been a proper investigation.
Lastly – even at the end of the day if there was insufficient to fire him wouldn’t most of us offer D a sum of money to simply resign with him signing an agreement that he would not bring a personal grievance?
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
