In this particular case the employer had several reasons to be dissatisfied with the performance J. As a result of that dissatisfaction A Ltd wrote to J, after discussing the grounds for the dissatisfaction with him and his father. That letter set out the consequences of not reaching the desired standards “… so there can be no misunderstanding.”
The letter specifically set out the areas needing improvement and gave a review date whereupon performance would be judged again.
Subsequent to that letter and prior to the review date the employer felt it necessary to have another meeting with J where he outlined further areas of concern. This time he also made it abundantly clear that “… your continued employment may be in jeopardy.” The employer said that he would think about J’s continued employment and meet with him again in a fortnight’s time.
Before that meeting could take place the incident that initiated the dismissal took place. There was no dispute about the bare facts of the situation.
J rang into work saying that he was ill and could not attend work that day – he had eaten Indian food the night before which had, perhaps, caused his illness. The next day the employer approached J and asked what he had been doing the day before. He replied that he had been sleeping and doing study. He was pressed about his reply and repeatedly said that he had not left the house. After further questioning he admitted that he had also resat an exam. There was an issue around when he had arranged to resit the exam.
Later in the day at a meeting to discuss the matter J was asked if he had any further explanation. He said that he had misunderstood the question he had been asked about when he had arranged to resit the exam. The employer said J’s excuses “sounded ridiculous” and that this was again an example of the problems and behaviour that he had been warned about – not accepting responsibility for his actions.
Although the exact discussion was not entirely agreed a number of salient points were clear. A Ltd asked J to attend a meeting. It appeared that the employer did not specify or formally tell J that the meeting was to consider his future employment or that he faced dismissal. J was dismissed.
The Authority had to consider the enquiry A Ltd made and the decision they made in light of their enquiries. Those then had to be weighed against the objective test of what a fair and reasonable employer would have done in all the circumstances.
Then employer was faced with what he perceived as an employee’s dishonesty and apparent inability to grasp a principle fundamental to A Ltd’s business; the requirement to accept responsibility for his own behaviour and mistakes. A Ltd failed at one crucial step to meet the required standard. A Ltd believed that they had been lied to and that this was simply another example of J failing to take personal responsibility for himself and his actions.
The ERA decided that a fair and reasonable employer would have confronted J with the belief that he had lied, provided him with the information that led to this conclusion and advised him that if his behaviour was proven then this could lead to his dismissal. A fair and reasonable employer would then have offered J an opportunity to explain, they would have listened to that explanation and given it careful consideration before concluding that dismissal was appropriate.
Ultimately the ERA decided that J had a personal grievance but that he had contributed to the matter to the extent of 75%.
A lesson to be learnt by both employers and employees: that each can be held to account for their actions in the personal grievance situation.
