Serious misconduct dismissals not always open and shut

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Serious misconduct leading to employee dismissal might appear to be an open and shut situation but, as a recent case has demonstrated, it is well-worth adhering to the proper process.

The Employment Relations Authority (ERA) decision on a Christchurch construction company’s dismissal of an employee caught smoking cannabis is a timely warning that failing to follow due process – even in extremes cases – can lead to substantial costs.

After one of the company’s employees was reported for smoking cannabis on a worksite, he was dismissed immediately for serious misconduct. However, there was some confusion over this: the employee thought he might be able to keep his job providing he took a drug test, which he later refused to do, while the company considered that the employee had been dismissed outright. Eventually, the employee raised a personal grievance and sought compensation for lost remuneration and for distress.

In its determination, the ERA found the company had failed to inform the employee of the source of the allegation against him, nor had it given him the opportunity to refute or explain the allegation. According to the ERA, although the employee was not blameless, the unfair process followed meant his dismissal was unjustifiable. It also entitled him to an award of remedies – which amounted to $13,760 for lost wages, distress and a breach of the employment agreement.

Commenting on the case, lawyers from employment law firm Cullen said employers only get one opportunity to properly execute the disciplinary process leading to dismissal, and so it is important to make sure it is done properly every time. They said that employers should keep the following considerations in mind:

  • Procedural fairness requires giving appropriate notice of the disciplinary meeting, which means the employee should be told:
    • That the nature of the meeting is for disciplinary purposes to discuss allegations of serious misconduct made against the employee;
    • That the meeting could result in the summary dismissal of the employee; and
    • That the employee has the right to have a support person present.
  • As serious as an allegation may be, employers should not predetermine their decision before putting the allegation to the employee.
  • Employers should be prepared to provide relevant information about the allegation – this may include who made the allegation and others who have corroborated the claim.

Key HR takeaway

Had the company taken the time to provide a fair opportunity for the employee to respond to the allegation of misconduct, his dismissal would have likely been entirely justified and would not have been so costly for the company, the Cullen lawyers said. Taking extra time when pursuing a dismissal could protect employers from having to pay substantial awards to aggrieved employees, they said.


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