ERA penalises firm for failing to consider employee comments

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A supervisor who was sacked after failing to remove an onsite portaloo has been awarded compensation, after a judge found that his employer dismissed him without offering an opportunity to explain his actions. 

John Gemmell was employed as a site supervisor for Quality Road Services (QRS) when he was suspended for refusing to remove the toilet from a worksite.

He had taken a portaloo from another of the company’s sites and placed it on the worksite where he was working.

Construction manager Andrew Heron told Gemmell to remove the portaloo, but Gemmell refused to do so. This led to the COO, Robert Beale, paying a visit to Gemmell at the worksite.

The Employment Relations Authority (ERA) deemed Gemmell’s viewpoint as a “matter as a debate about the merits of having a portaloo on site” as opposed to him disobeying an instruction from his manager.

It was also determined that Gemmell was “dragging his heels” rather than refusing entirely.

Following Beale’s visit, QRS’s HR manager, Jeremy Harker, attempted to give Gemmell a letter that indicated his suspension – but Gemmell refused to accept it.

The ERA stated that he had refused to “accept the letter because he was annoyed that he was being given it before being asked for his version of events”.

Gemmell also raised health and safety questions around removing the portaloo.

Shortly after refusing the letter, Gemmell was dismissed.

The authority found QRS's decision to be "fair and reasonable employer could come to in all the circumstances at the time".

It also found Mr Gemmell would have been in a better position to respond if he hadn't refused the letter of suspension.

"It [QRS] could not force him to take, and read, the contents of the envelope".

While the ERA found QRS’s decision to be “fair and reasonable”, the company admitted its suspension of Gemmell was unlawful as there had been no prior opportunity for Gemmell to respond to any allegations or concerns.

The authority therefore determined that QRS breached the HR obligation that “employees be given the opportunity to comment on their proposed suspension, and to have their views considered” before a suspension was ordered.

Gemmell was awarded $4,000 in compensation for the “grievance he suffered”.
  • Steve Punter on 6/11/2015 12:01:04 p.m.

    In this case, whether the employee needed to be suspended is a debatable point and consultation might have produced a different solution. There were no dire circumstances or immediate risk.

    However, I need to be reassured that presiding ERA Members accept and understand the reality that there are circumstances where 'consultation' would not change the outcome - i.e. the employee HAS to be suspended - and therefore 'consultation' would be a farcical charade, and would be seen as such by both parties. I'm thinking of serious dishonesty offences, or serious health and safety issues.

    Assuming that the suspension is on full pay, then the critical question should not be a technical 'was the employee consulted?', but rather, 'was the employee disadvantaged by the lack of consultation?'. If the outcome has to be the same regardless (i.e. suspension) then the employee has not been disadvantaged, and there should be no finding of procedural fault.

    I would be concerned if the ERA is adding yet another absolute procedural technicality on which to hang employers regardless of the context or circumstances.

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