The Police were called, but they decided not to do anything when it was established that the employee had been given permission to take lettuce by Mr B. Mr B acknowledged at the time that he had given the employee permission to take some lettuce, but he later disputed seeing two sackfuls being taken.
On the day that the events occurred Mr B was called into a meeting with the fresh crop operations manager and the general manager of the company. There was a dispute about what was said in the meeting. Mr B says that they told him that they wanted someone “fired” for what had occurred.
Later that same day Mr B received a letter from the operations manager advising him that the company considered his actions “over-reaching his authority”, and theft constituting serious misconduct. He was suspended without pay (the employer could not suspend without pay but this was settled between the parties before the Hearing).
Another meeting was held three days later. Mr B was informed of his right to bring a support person, but could not arrange for a representative to be present. Mr B said he did not know how many lettuces had been taken. Mr B was dismissed.
The Employment Relations Authority had to decide whether a fair and reasonable employer would have dismissed Mr B in the circumstances. The first problem for the employer was at the second meeting the employer did not adjourn the meeting (when it decided that Mr B was being dishonest in his explanation about knowing the number of lettuces taken ) and allow Mr B an opportunity to get representation. I keep telling employers to slow down – good procedure is not hurried procedure.
The ERA found that the employer’s investigation was not as thorough or complete as it should have been . Finally the decision to dismiss was pre-determined. There are separate decisions in any fair dismissal process.
Step one – is there serious misconduct?
Step Two – If the answer is yes then what is the appropriate outcome – ie is dismissal the outcome.
These two decisions require separate determination. Dismissal does not automatically follow a finding of serious misconduct. The employee is entitled to give submissions in respect of both issues. However even though the Authority found in favour of Mr B it did not award him anything. He had not looked for work in the period between his dismissal and the ERA investigation (and so wasn’t entitled to lost wages). His explanation of when he came to know about how many lettuces were involved was not consistent – to the point that it looked as though he had changed his story to minimise his involvement and exposure.
The lesson for employers from this case is SLOW DOWN.
The example I use for Dairy Farmers is that even if you go into the shed and see a worker pouring a bottle of penicillin in the milk vat you still have to follow a proper reasoned procedure. There is no such thing as instant dismissal.
5 March 2009
