Employer fails to follow disciplinary procedures and employee is unjustifiably disadvantaged and constructively dismissed…

The Employment Relations Authority held an employee was unjustifiably disadvantaged by the employer’s actions in conducting a performance review advising him he would get a “written warning”.

In the meeting the employer stated to the employee that if another meeting was held ‘our decision would not change’, and did not respect the employee’s rights.

The employer’s decision was a breach of company policy as the employer did not follow its disciplinary procedures in a fair and reasonable way. The breach was not minor as the employee was advised of a decision without notice of allegations or the opportunity to gain representation.

The ERA held the employment ended by constructive dismissal as opposed to genuine resignation. The employer’s failure to follow its own rules and treat the employee fairly was a breach of the terms of its employment relationship with the employee, establishing the first element that the employee’s resignation was forced rather than given.

The second element was whether the breach was sufficiently serious to make it reasonably foreseeable to the employer that the employee would not be prepared to continue to work for it under those circumstances.

ERA held the employer’s action created a situation where the employment ended and held the employee was constructively dismissed.

The remedies the ERA found included lost wages of 7 weeks and $4,000 for compensation for the effect the constructive dismissal had on him.

Alan Knowsley