The Employment Relations Authority has found that an
employer’s investigation of serious misconduct allegations was defective, but
that the behaviour of the employee was so bad no remedies would be
awarded.
The employee had got into an argument with his supervisor
and had stormed off slamming the door of a work vehicle, shattering the window. The employer suspended the employee after
giving him an opportunity to comment on the suspension and then conducted a
serious misconduct investigation.
The ERA held that most of the process followed by the
employer was satisfactory, except that it did not properly investigate
allegations by the employee that he reacted as he did because of constant
bullying by his supervisor. The
employer’s failure to adequately investigate the allegations of bullying meant
that its decision to dismiss for serious misconduct was wrong.
The ERA went on however, to find that it would not award
any remedies to the employee because of his behaviour. In relation to the events being investigated,
he had covertly recorded a meeting with his employer which, although not
illegal, was a breach of good faith. He
had also lied to his employer about breaking the vehicle window. In relation to other incidents he had
unwanted, inappropriate and offensive interactions with other employees, some
of which were of a highly sexualised nature.
He had also made unnecessary, inappropriate and excessive use of his mobile
phone at work, including taking pictures of other employees and sending them to
those employees outside of the workplace.
That conduct meant that it was inappropriate for the ERA to award any
damages for the unjustified dismissal.
Alan
Knowsley
Employment
Lawyer Wellington
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