ERA backs worker sacked for using workplace as “pick up joint”

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A decision by the Employment Relations Authority (ERA) regarding the case of a Mitre 10 Mega worker accused of inappropriate behaviour is a good reminder that employers should always follow the proper process when conducting disciplinary investigations, says lawyer Jennifer Mills, partner at Minter Ellison Rudd Watts Lawyers.
 
Mitre 10 Mega has been ordered to pay Tony Weber $8,874 in compensation and lost wages after the ERA found he was unjustifiably dismissed from the Palmerston North store in November last year.
 
Weber was accused of using the store’s outdoor garden area as a “pick up joint” and the store received four complaints from staff and customers regarding his behaviour, including allegations of sexual harassment and bullying by Weber.
 
According to ERA member Michele Ryan, Mitre 10 Mega was justified in giving him a final warning but the company did not follow the correct procedure as Weber was never told what the potential punishment could be and the company did not properly investigate the final complaint made against him.
 
“Whilst employers should always treat allegations of an employee’s inappropriate behaviour seriously, investigations and disciplinary action into such matters should always follow the proper process – both at law and with any additional directions which company policy may stipulate,” says Mills.
 
She further explains that “in this case, the employer failed to follow their own disciplinary procedure, set out in their company policy, when investigating an allegation of inappropriate behaviour by an employee”. 

“The employer’s own policy stated that during a disciplinary proceeding, an employee 'must be given notice of the specific allegations of misconduct and the potential penalty that may be applied if the allegation is upheld'." Mills says.

"Here, the employer sent the employee an initial letter inviting them to attend a disciplinary meeting to discuss an allegation of inappropriate behaviour towards a customer. However, this letter failed to warn the employee that a potential outcome of the meeting was for disciplinary action to be taken against the employee if the allegation proved true. Consequently, the employer did not follow its own policy and failed to forewarn the employee of the 'potential penalty that may be applied if the allegation is upheld'. Accordingly, the Employment Relations Authority concluded that a fair and reasonable employer must advise an employee if there is any potential for disciplinary action to be taken at the conclusion of an investigative process.”
 
Mills says the employer’s failure to warn Weber likely contributed to his “naive and unguarded responses to allegations”. “This case is a good illustration of how procedural missteps can unravel the entire disciplinary process. Although, we note that in this instance the Authority also found that Mitre 10’s investigation into the incident upon which it terminated the employee’s employment was also insufficient,” she adds.
  
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