Once again employer gets disciplinary proceedings wrong...

An employee of a large government department has won his personal grievance and been awarded compensation after his employer botched the disciplinary process.

The employer raised several allegations with the employee and appointed an investigator to make inquiries and interview the employee and other witnesses.  There was video footage of the incident which was shown to the employee, but not to the complainant, and all staff shown on the video were not interviewed as to their version of events.

The investigator accepted the employee’s explanation for one of the allegations but inexplicably then found that allegation to be partially upheld.  The final decision-maker then even more inexplicably found the allegation to be upheld, and that it was serious misconduct.

Two of the allegations were unfair repetitions of the same allegation which made matters look worse than actually occurred.

The final decision-maker then introduced a fresh allegation, which was never put to the employee, as the major reason for finding serious misconduct.

A final written warning (of unlimited duration) was then put on the employee’s file despite a 27-year previously unblemished record.

The Employment Relations Authority held that the employer’s actions were not what a reasonable employer could have done. 

All witnesses should have been interviewed, and the employee’s explanations put to the complainant for comment along with the video footage. 

Once the employee’s explanation was accepted there should have been no partial or full finding of serious misconduct on that issue (failing to follow instructions).

In addition, even if the allegation was proven it could never have amounted to serious misconduct.

There should not have been duplication of the allegations, or a fresh allegation without getting the employee’s response. Putting in place a final warning of unlimited duration was not justified.

The ERA ordered the removal of the finding of serious misconduct, and final warning, and awarded modest compensation because the employee’s behaviour contributed to the events.

Even big departments with lots of resources still get the processes wrong.  It is important to keep asking at every stage, “Is this what a reasonable and fair employer could do?”

 

Alan Knowsley