The Employment Relations Authority has upheld a personal
grievance for unjustified disadvantage and unjustified dismissal after a
cleaner was dismissed following getting a conviction. When the client company of the employer heard
of the conviction it required the employer to remove the employee from its work
site. The employer undertook to do that
but failed to give the employee any opportunity to comment on the client’s
concerns before doing so.
The employer tried to find alternative work for the
employee, but because of the conviction could not place him at any other client
sites and he was therefore dismissed on one week’s notice.
The Employment Relations Authority found the dismissal was
unjustified. This was because the employer should have tried to preserve the
employee’s role at the client. It should have pointed out that employees have
statutory rights that cannot be ignored and that the employer could not simply
bow to demands before it had investigated the matter and given the employee an
opportunity to comment.
The ERA found that suspending the employee without
providing information or reasons for the suspension was an unjustified
disadvantage and that the dismissal was unjustified. It awarded $9,454 lost wages plus $12,000
compensation.
Interestingly, it refused to reinstate the employee to his
position with the cleaning company because no other clients of the employee
would accept the employee with the convictions that he had.
If the employer had followed a proper process and given
the employee an opportunity to comment before it suspended and before it
dismissed, then it is likely that the dismissal would have been justified
because of the inability to place him with any clients.
Alan
Knowsley
Employment
Lawyer Wellington
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