In a recent case* an employee ‘A’ successfully claimed he had been unjustifiably dismissed from his role as a blinds manufacturer and installer.
Background
The Employment Relations Authority (ERA) held he had been dismissed following a conversation with the employer’s operations manager about the employee’s performance and attendance. ‘A’ had been employed for 12 working days. He had been absent on four of those days for reasons ranging from a family emergency, an appointment relating to treatment of a childhood glass accident, and two separate instances of “the shits”.
Under the Employment Relations Act 2000, an employer must show a dismissal, or other disciplinary action, was a “fair and reasonable” step to take in the circumstances.
This involves assessing whether any investigation into the employee’s conduct was sufficient, and whether the employer raised concerns with the employee, gave the employee opportunity to respond and genuinely considered the employee’s response before taking disciplinary action.
No opportunity to respond
The ERA considered the employer had reasonable concerns about the employee’s attendance, his failure to use the company’s clock-in system and the speed and quality of his work. However, it failed to provide the employee an opportunity to respond to these concerns and did not develop a plan for improving the employee’s performance. These defects were described as “more than minor” and resulted in unfair treatment of the employee, meaning his dismissal was unjustified.
Cost to employer
The employee was awarded $4,000 lost wages and an additional $8,000 compensation for humiliation, loss of dignity and injury to feelings. His conduct was not found to have contributed to the unjustified dismissal. The employer was also ordered to pay the employee’s wage arrears and was fined $4,000 under the Wages Protection Act 1983 for two failures to pay wages due to the employee.
Other examples
In another case, a pilot had been dismissed following allegations he had sexually harassed a flight attendant. The employer was found to have concluded the employee was at fault based on unreliable evidence, meaning the dismissal was unjustified. A further example*** was a doctor who was found to have prescribed controlled drugs of dependance to her partner in violation of applicable professional standards. An appropriate investigation was conducted, and the employer reasonably concluded serious misconduct had occurred, but they failed to adequately consider alternatives to dismissal, meaning the dismissal was unjustified.
Follow the process
It is essential employers follow a thorough and fair investigation process into allegations of misconduct against employees. Even when it is obvious serious misconduct has occurred, it is essential employers follow the correct procedure before choosing to dismiss an employee. Whether you are an employer with concerns about an employee’s conduct, or an employee facing a disciplinary process, [Enable JavaScript to view protected content] at PRLaw for advice.
* Abbas v No. 1 Blinds Limited ([2025] NZERA 287)
** H v A Ltd ([2014] NZEmpC 189)
*** Emerson v Northland District Health Board ([2019] NZEmpC 34)
