Unjustified dismissal but remedies reduced by 50%...

The Employment Relations Authority has upheld a personal grievance claim for unjustified disadvantage and unjustified dismissal, but because of the employee’s conduct has reduced the remedies awarded by 50%.

The unjustified disadvantage came about because the employer suspended the employee without an opportunity for the employee to comment on the suspension.  Following the meeting at which the suspension occurred the employer denied having suspended the employee, but notes made by another manager at the meeting recorded “employee suspended on pay”.  The ERA accepted that the employee had been suspended and disadvantaged by the lack of any process.

In relation to the dismissal the employee was on a guaranteed 80 hours per fortnight and her employment agreement provided a consultation process to discuss a reduction in hours if the employer’s circumstances changed.  Those circumstances had changed due to a reduction of the number of clients for the employee to work with so the employer could have invoked this clause, consulted with the employee and then reduced the hours guaranteed.  Rather than doing that the employer said it was considering redundancy to disestablish the employee’s position unless she agreed to less hours.  That was not justified as the position was still required, just with less hours.  The dismissal of the employee for redundancy was therefore unjustified.

The ERA would have awarded three months wages and $20,000 compensation for hurt and humiliation, but for three aspects of the employee’s behaviour.  The employee had refused extra hours offered outside of her normal hours of work, she had told a client of her suspension in breach of her code of conduct and had arranged for a family member to contact a client in breach of an instruction not to contact that client.  Those three actions justified a 50% reduction in her remedies.

It is important for employer’s to read and understand their employment agreements and to adhere to them when discussing matters with employees.  Likewise employees should abide by their agreements and should not act in breach of their code of conduct or any instructions given by the employer.

Alan Knowsley

Employment Lawyer Wellington