Anonymous complaints sometimes may be allowed in disciplinary investigations...

The Employment Relations Authority has held that the names of complainants may be withheld from the employee being investigated in some circumstances.

In this case the witnesses all feared for their safety if their names were disclosed.  The employer investigated, and discounted any collusion between them as to the allegations.

The ERA held that, not only must the use of a secret witness be justified, but that the employer must provide significant other information to enable the employee to be properly informed of the allegations made, and to be able to give a reasonable response to the allegations despite not having the names of the complainants.

The employee’s claim for unjustified dismissal was upheld because the employer failed to give enough details as to the dates, times and places of allegations to enable the employee to fairly respond.

 

Alan Knowsley

Poor disciplinary process costs employer over $19,000…

A manager’s claim for a personal grievance for unjustified dismissal has been upheld by the Employment Relations Authority.

The manager was dismissed following an audit into his expense claims.  The audit turned up 178 discrepancies and these were put to the manager for an explanation.

The employer decided to dismiss him despite his explanations. 

The ERA found that they had:

(i)            Not given the manager all of the information they should (they withheld the full audit findings).

(ii)           Not found which claims they thought were in breach of their policies and which they accepted as genuine.

(iii)          Not interviewed people involved when they were given the names as part of the manager’s explanations.

(iv)          Not given the manager an opportunity to comment before suspending him.

(v)           Not put in place clear policies on expense claiming.

(vi)          Not advised the manager on what the policies were.

(vii)         Not raised any prior concerns as to his claiming practices.

The ERA held that his dismissal was unjustified and ordered that he be paid $17,000 lost wages and $10,000 compensation for hurt and humiliation.

These awards were reduced by 30% due to the manager’s contributing conduct (his poor claiming practices and lack of reasonable excuses for over-claiming).

The bottom line…An employer that should have been able to get rid of a manager, who they felt was ripping them off, has failed to recover the money they thought was misappropriated, and ended up paying the person $12,000 because of their poor practices (lack of policies and lack of fairness in the disciplinary process).

It is important to get your policies and processes right so you can follow through with disciplinary action as appropriate.

 

Alan Knowsley

School Board dismisses Principal without due process…

A first time school principal found herself in conflict with her Board and was working though performance and discipline issues.  Part way through that process a sub-committee of the Board took it upon themselves (without any delegated authority) to summarily dismiss the Principal without putting any allegations to her or giving her any opportunity to respond.

The Employment Relations Authority has had no difficulty in ordering her immediate interim reinstatement pending a full hearing.  The employer has clearly not acted as a fair and reasonable employer and the justice of the case requires that she be paid pending the outcome of the hearing.

This reinstatement was ordered despite the opposition of the Board and other staff, but the Principal will only be on the payroll and not actually carrying out the Principal’s functions in the interim. 

The Board should have got its processes right given the resources available to it for advice from various sector groups.

 

Alan Knowsley

Driver was an employee not a volunteer…

The Employment Relations Authority has upheld a personal grievance claim from a dismissed driver for his unjustified dismissal, and awarded around $5,000 compensation.

The driver was dismissed without any disciplinary process being followed after his boss discovered he had contacted the Ministry of Business, Innovation and Employment about his poor working conditions. 

Despite there being no written employment contract, and payment of “koha” rather than wages, the ERA found that the driver was a regular, on-call, casual employee who was paid regularly and reported to a manager as an integral part of the business. 

He was therefore not a volunteer as the employer claimed.

It is important to establish the correct status of people involved in your business whether they are employees, contractors or volunteers.  A failure to do so can be costly.

 

Alan Knowsley

Unsuccessful job applicant gets order for access to other applicants’ information…

In a significant decision concerning the privacy of information of job applicants the Human Rights Tribunal has ordered information to be provided to a losing applicant.

The unsuccessful applicant alleged age discrimination and sought the applications, CVs, interview notes, reference checks and recruitment agency reports on all other applicants.

The Human Rights Tribunal held that he was entitled to access that information, including the names of all applicants, so that he could progress his discrimination allegations.

The decision has overridden the protections in the Privacy Act for both the other applicants and referees. Other applicants could expect their personal information (including credit and criminal record checks) to be kept confidential and referees would expect to be able to give free and frank assessments without that information becoming known to an unrelated applicant.

If you receive an application for access to personal information about another person then it is important to seek advice before deciding on releasing any information.

Alan Knowsley

Employer’s decision not to make manager redundant upheld…

A recent Employment Relations Authority decision has dismissed an employee’s unjustified dismissal and unjustified disadvantage claims.

These claims resulted from him not being made redundant when his other team members were offered redundancy following the factory closing after the Christchurch earthquakes.

The employer wanted to retain the employee’s skills so found him alternative work.  The ERA held that he had no right to be made redundant as the employer had work for him and he was not dismissed or disadvantaged.  The employer was held to have treated him in good faith and in accordance with their policies. 

The employee is now left facing a legal bill for his unsuccessful challenge plus the employer’s legal costs.

 

Alan Knowsley

 

Hospital loses case against dismissed employee…

Following breaches of sterility procedures a hospital employee was dismissed because of prior warnings and a final warning.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissal because the employer failed to follow its own process, did not tell the employee that dismissal was a possibility, and failed to properly investigate the allegations.

The employee was awarded $5,000 compensation, but no lost wages (because she failed to prove she had lost wages) and no reinstatement because of the employee’s conduct and failure to follow safe practices. 

The $5,000 award was reduced to $2,500 because of the employee’s contributing poor conduct.

If the employer had followed its own process properly it could have dealt with this poorly performing employee without the cost of defending and losing a personal grievance claim.

 

Alan Knowsley

 

 

Truck driver dismissed following damage to his truck…

In a recent Employment Relations Authority decision a truck driver’s personal grievance claim for unjustified dismissal has been successful, but resulted in minimal awards.

The driver damaged his truck at least twice causing significant damage and repair costs.  He was stood down by agreement until the truck was repaired but was then dismissed without any proper process.  

The failure to tell the driver it was conducting a disciplinary investigation, or what the allegations were, meant the dismissal was unjustified and $5,000 compensation was ordered. 

This was reduced for the driver’s contributory conduct (causing the damage and traffic offences) to less than $2,000 plus legal costs. 

No lost wages were awarded as the driver obtained alternative employment and earned more than he would have been paid in his old job.

 

Alan Knowsley