Employers encouraged to do it by the book

OPINION: If ever you thought there was a more straightforward, "slam dunk" case to dismiss an employee, it would be if they had sold drugs to a co-worker, writes Mary-Jane Thomas in this week's Work to Rule.

It definitely has that "serious misconduct" ring to it, doesn't it? But even where conduct appears to warrant termination, the Employment Relations Authority states – do it by the book.

W was provided a company cellphone for work purposes.

At some stage W was given a new cellphone and returned his original one to the company. But as T, the company's general manager, was deleting the messages from the phone, he stumbled upon a voice message asking if W was "able to get any stuff" (I know, I don't understand why he was checking the voice messages either).

T's immediate instinct was that W was selling drugs and he arranged a meeting that same day to confront him. W returned to the office, unaware of what the meeting was in regard to, let alone that there was a phone message recording that implicated him. At first W denied selling drugs, even laughing at the accusation, so T surprised W by playing the message, leading W to concede to providing "two tinnies" (a small amount of cannabis wrapped in tinfoil) to a fellow employee. He claimed he only did it the once and couldn't recall whether he had sold them or simply given them away.

W was then suspended pending a formal meeting that was arranged for a week later.

However, the meeting failed to reach a resolution.

Three days later, W received a letter terminating his employment as part of the company's "zero tolerance" drug policy.

Unfortunately, for the company, this termination would cost them three months pay and $6000 compensation – so where did they go so wrong?

Due to the serious consequences, T should not have confronted W without giving notice of the allegation against him and its potential consequences. Without this, W was unable to seek support, advice or representation for the meeting – which is a minimum standard for disciplinary situations.

I often have employers thinking that interviews are like they see on police dramas where they surprise the "villain" with video footage of him robbing the bank. Don't do it – you are not playing a scene from Law and Order.

The authority also noted an element of predetermination in the dismissal as W was not given any opportunity to comment on his unilateral suspension before it was made or announced to him. This indicated an intention to dismiss W on his admission of conduct which the company regarded as serious misconduct without allowing W a genuine chance to respond. Again, there has to be a proper process carried out before you even suspend someone on full pay.

W's request for T's notes taken at the first meeting was also refused. This deprived W of the chance to address the evidence that would ultimately be used to dismiss him. This decision to dismiss W was made by three people.

However, one – the company's sole director – was not present at any of the disciplinary meetings. Consequently, W did not have a reasonable opportunity to explain himself to her which made access to the meeting notes even more essential. The location of the drug transaction was of material importance to the decision to fire W.

However, T failed to inquire into this. Had he done so, T would have discovered that the transaction took place outside both the premises and work hours.

Finally, the company proclaimed a "zero tolerance" towards illegal drugs but there was no mention of this policy in the employment agreement or publicised as policy with staff.

Terminating someone's employment must always be done in a fair and reasonable manner – no matter the conduct. So employers, do it by the book because even if a case looks like a slam dunk from the outset, it doesn't mean you can't get fouled on the way. (Go the Sharks!!)

» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to mary-jane.thomas@prlaw.co.nz.

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