An Employer has been ordered to pay a
significant sum after the disciplinary process it undertook was found to be
faulty.
The Employee, a care worker at a residential
care facility, took a small packet of potato chips from a locked cupboard containing
refreshments intended for the residents of the care facility. The Employer had
previously raised its concerns about food and other items going missing.
The Employee admitted taking the potato chips
but denied any dishonest intention.
The Employer conducted a disciplinary process
where it raised its concerns and asked the Employee to respond. The Employer
considered that the Employee’s actions amounted to serious misconduct. Although
the Employment Relations Authority held that this outcome was open to the
Employer, they disagreed with the Employer’s decision.
The Employer said that it had lost the
necessary trust and confidence in the Employee, because if the Employee was
willing to take food intended for residents, there was a risk that residents personal
possessions or other items could also be taken. However the ERA held that there
was a significant difference between a small packet of potato chips and the
personal possessions of residents.
The Employer’s strict view on employees’
consumption or removal of items which were intended for residents meant that
the decision to dismiss the Employee was, in part, pre-determined.
The Employer was ordered to pay the Employee
three months’ lost wages and compensation of $18,750 for humiliation, loss of
dignity and injury to feelings. The ERA took the Employee’s behaviour into
consideration and reduced the award by 25%.
Employers must consider the proportionality of
the response when an employee is sanctioned during the disciplinary process. In
this case, the Employer took a ‘hard-line’ approach and dismissed the Employee
for taking a small packet of potato chips, worth less than 50 cents. This was
not a proportionate response by the Employer.
There can be severe consequences when an
employer does not get the disciplinary process right…even when an employee is
at fault in some way.Ben Ruback
Employment Lawyer Wellington
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