Employment Court keeps mediations confidential…

A recent decision of the Employment Court refused to allow an employee to challenge an Employment Relations Authority decision that had refused to allow her to call evidence of what occurred at mediation.

The mediation process is protected from disclosure.  The employee wanted to call evidence of what took place at mediation to show bad faith by the employer. 

The ERA ruled this evidence out and the Employment Court agreed. 

To allow it in would seriously undermine the value of mediations where participants need to know that what they say is protected from being used against them.

Alan Knowsley

7 warnings did not make dismissal justified where the process was badly wrong…

An employee has succeeded in his personal grievance claim for unjustified dismissal in the Employment Relations Authority.

The employee had received seven warnings for poor performance and was dismissed on the eighth occasion.  However, the employer got every part of the process wrong.

It:

1)      Suspended the employee without any opportunity to give input before the suspension.

2)      Did not tell the employee it was investigating allegations.

3)      Did not give enough detail of the allegations to enable the employee to respond adequately.

4)      Failed to issue any warnings about the first 3 allegations until after four more alleged incidents.

5)      Then issued seven warnings without raising any of the 4 new allegations with the employee.

6)      Dismissed the employee without any investigation of the eighth incident.

7)      Did not tell him it was investigating the 8th allegation.

8)      Did not give him any opportunity for a support person.

9)      Did not take his explanations into account.

All the warnings, the suspension, and the dismissal were held to be unjustified, and the employee was awarded his lost wages and $10,000 compensation for the hurt and humiliation suffered from the poor processes.

The bottom line: 7 warnings done incorrectly did not make dismissal for the 8^th incident justified.

 

Alan Knowsley

Voluntary resignation during disciplinary process prevents claim…

An employee has lost his constructive dismissal claim in the Employment Relations Authority.  The employee was being investigated for theft of company property.  During the investigation meeting the employee’s representative suggested he be allowed to resign rather than be dismissed for theft. 

The employer agreed and a resignation was written up by the employee.

The employee then brought a claim alleging the employer constructively dismissed him by threatening termination.  The ERA held that the offer of resignation came from the employee’s representative, and not from the company, and so was not improper pressure to resign.  As the employee had been allowed to resign he could not bring a claim alleging he was dismissed.

 

Alan Knowsley