Employer gets everything wrong in disciplinary investigation…

The Employment Relations Authority has upheld a personal grievance claim for unjustified disadvantage and unjustified dismissal following the sacking of an employee for serious misconduct.  The employee was investigated for failing to follow health and safety procedures and was summarily dismissed following the investigation.  The ERA found that the employer got virtually every step of the process wrong. 

It suspended the employee without informing him that it was considering suspending him and giving him an opportunity to respond.  There was no justification for this and therefore he suffered a disadvantage, despite the fact he was on full pay during his suspension.

In relation to the dismissal for serious misconduct the ERA found that the employer had pre-determined the employee’s guilt prior to the disciplinary meeting.  The employer had already decided it was serious misconduct and that the employee should be dismissed.  Evidence of this could be found in the letter of termination, which was prepared before the disciplinary meeting.

In relation to the disciplinary meeting the employer failed to inform the employee that it was a disciplinary meeting.  He also failed to inform the employee of what he was alleged to have done wrong and that it could serious misconduct.  The employer also failed to inform the employee that the serious misconduct could lead to his dismissal. 

In addition no supporting information, which the employer had gathered, was provided to the employee to consider and comment on.  There was therefore no fair opportunity for the employee to respond to the disciplinary allegations and no opportunity was given to him to comment on the proposed dismissal.  The dismissal was therefore carried out in an unfair manner and was unjustified.

The ERA considered that the employee had contributed to the dismissal because he had carried out his work in an unsafe manner and had not followed the health and safety procedures.  The level of contribution was set at 30%.  After deducting 30% the employee was awarded $6,000 lost wages and $15,400 compensation for hurt and humiliation.

If the employer had carried out a proper process to investigate and reach conclusions, then it would have been fully justified in dismissing the employee and saved itself over $21,000 plus the costs of defending the claim.  It pays to get your processes right. 

A free guide to carrying out a disciplinary process is available on our website for downloading.

Alan Knowsley

Employment Lawyer Wellington