The
Employment Relations Authority has upheld a personal grievance claim for
unjustified dismissal after an employee used foul language to another employee
in relation to her supervisor. The
employee was unwell and wished to take time off on sick pay but did not have
enough sick leave to cover the period required.
She asked her supervisor to approve annual leave but this was
refused. After their meeting the
employee complained to a co-worker. The
co-worker reported the exchange to management along with allegations of foul
language. Following an investigation the
employee was dismissed for the use of the foul language.
The
obscene language had been heard by two employees who confirmed to management
what words were used. However, the
Employment Relations Authority found that there were inconsistencies in what
the main employee who reported the language had recorded in a written statement
of what was said compared to her later claim as to what was said. The ERA found that the alleged foul language
was not used and therefore the employer’s decision to dismiss was not one a
reasonable employer could reach. The
discussion had been a private discussion between two employees and the language
even if it had occurred was not directed to the supervisor.
The
ERA awarded $6,700 being three months lost wages plus $6,000 compensation and
costs.
Alan Knowsley
Employment Lawyer Wellington
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