Unjustified dismissal but no remedies awarded ...

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal, but in an unusual twist, refused to grant the employee any remedies. 

The employee was an electrical apprentice in his third year of training.  On a job he wired up a connection in an unsafe manner, despite knowing the correct way to carry out the wiring job.  Luckily another apprentice, who was connecting something to the wiring, discovered the unsafe job and alerted management to the problem.

The employee admitted that he had been lazy in completing the connection and that all other connections in the building, that he had done, were done in the same unsafe manner.

The employer carried out an investigation into serious misconduct and dismissed the employee.  The employee raised a personal grievance claiming unjustified dismissal and this was upheld by the ERA.

The ERA found that the employer had predetermined the issue of serious misconduct.  It even said that serious misconduct had occurred in its letter raising the matter with the employee.  In addition incorrect information was given to the employee about the events subject to the disciplinary investigation and what he was accused of would only have been subject to a warning under the employer’s policies (because they were poorly worded).

The ERA held that, despite these failings, they were not going to award any compensation or damages to the employee because his behaviour in not wiring the connection according to the standards could have led to fatally serious consequences.  His excuse of being lazy was not acceptable and he had been warned numerous times about following proper standards and about his poor work practises.  The ERA found that it would be unconscionable to grant any remedies in those circumstances where his behaviour could have led to fatal consequences in the apartment building where he had been working.

It is important that employers follow a fair and proper process even when the evidence seems overwhelming against an employee.  Allegations should be put to the employee and their responses sought to the allegations.  The allegations should then be investigated fully without any predetermination of the outcome.

Alan Knowsley

Employment Lawyer Wellington