Generally speaking, an employer cannot terminate an employee if they are being really annoying, according to Sherridan Cook, partner at Buddle Findlay.
However, an exception could be if the annoying behaviour evolves into misconduct or in rare occasions, incompatibility.
“Incompatibility is a lesser known basis on which to discipline an employee or terminate their employment,” said Cook. “It’s lesser known because it doesn’t happen very often.”
Cook explained that the employee would have to have been the major cause of disharmony in the workplace which would have continued for an extended period of time.
Moreover, the employee would have had to have been told about it and demonstrated insufficient improvement.
“So, if they were really annoying over a long period of time and you tried to point that out, yet you still have others who are impacted by them and it is creating an unharmonious workplace then you may be able to terminate - but it is going to be rare.”
So, what are the legal risks of dismissing a union member who is really annoying and a rebel rouser?
Cook said that with any union member who you are disciplining you have got to make sure that you are not actually doing that because they are a union member.
“If that is the case then you could be discriminating unlawfully against them based on their involvement in union activities,” said Cook.
“And that definition is going to be extended under the current proposed changes to the Employment Relations Act to include union membership status as well.”
Those changes are currently before parliament and probably likely to pass early next year, Cook added.
“So even by virtue of their membership status you could be discriminating against them by disciplining them - you need to be mindful of that.”
Consequently, the discipline should not relate to anything to do with or be motivated by anything to do with their involvement in union activities or their membership status.
“It should be based on the alleged misconduct that they are facing,” said Cook.
“Other than that, there are just the usual risks that you face in your disciplinary investigation to make sure that what you are doing is what a fair and reasonable employer would do or could do.”
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