Mr C approached a co-worker who he believed was responsible for him receiving a parking ticket. She complained that Mr C was yelling and very aggressive. Upon learning that another colleague may have responsible, Mr C wrote a note saying “you better not of had anything to do with the ticket on my BMW. PS if you haven’t got a problem with me you have now.” Mr C eventually confronted that other person. He was reported as not having a nice tone, but apologized the next day.
Serious misconduct is behaviour which deeply impairs or is destructive of that basic confidence or trust that is essential to the employment relationship.
Mr C’s employment agreement stated that threatening and intimidating others (and other behaviour showing a failure to control anger) amounted to serious misconduct. However, the Employment Relations Authority found that the note did not contain an express threat, and no one feared for his or her safety. Mr C’s conduct was not behaviour amounting to serious misconduct as contemplated by the employment agreement.
The dismissal was also procedurally unfair for several reasons:
1. PM’s investigation was inadequate. They acted only upon the evidence of the note. Interviews with other employees were not recorded and what others said about Mr C was never put to him.
2. PM did not tell Mr C at the outset that he faced dismissal if the allegations were proved.
3. PM said Mr C’s “behaviour amounted to a threat and intimidation, but they did not specify which specific behaviour was the subject of this allegation”. Was it the note? The shouting? Or both? “The absence of specifity … unfairly denied Mr C an opportunity to address his employer’s concerns.”
Mr C received remuneration for lost wages and compensation of $10,000. Although not serious enough to warrant a finding of serious misconduct, the Court recognized that his actions were inappropriate, so these amounts were reduced by 20%.
Allegations of serious conduct must be handled very carefully. Full investigations and consultation with the employee at every stage are imperative. Save yourself the hassle of a personal grievance by engaging a lawyer to help you through the process.
