OPINION: This is a case where the employer pretty much broke every rule in the book, writes Mary-Jane Thomas in Work to Rule.

Mrs K worked at a Wellington movie theatre as a supervisor. The theatre was owned by a trust and employed Mrs K, another supervisor and a number of junior employees. Above all these was a manager - Mrs B.

During her employment several issues arose. Included in this was where the other supervisor told Mrs B that Mrs K had taken one black jellybean out of a lolly jar to eat. The supervisor said that Mrs K had previously taken handfuls of lollies. It was common ground that employees were allowed a couple of drinks and popcorn but nothing else unless they paid for it. (The Employment Relations Authority member concluded that the taking of the one jellybean by Mrs K was a “wind-up" to irritate the other supervisor)

On January 10, 2011, Mrs K was sent home by the manager on full pay. When she was sent home Mrs K had no notice of any particular allegations and the decision to suspend her was made before she had any opportunity to have input into the decision to suspend.

Note to employers: you cannot suspend someone without first giving them the opportunity to have input into that decision. Also, you cannot suspend someone unless there is a right to do this in the employee's Individual Employment Agreement.

Two days after being suspended Mrs B asked Mrs K to attend a meeting to discuss seven “findings”. Those findings included the use of inappropriate language in the work place, eating confectionary in breach of policies and various other matters. There were no details provided on the first two findings about inappropriate language and eating the confectionary.

Then for some unfathomable reason Mrs B arranged for a “private mediation meeting” where the employer obtained the services of a person purporting to be a mediator. This person was an acquaintance of Mrs B and a friend of the other supervisor.

At the so-called mediation the “mediator" did a lot of talking for the manager , gave Mrs K three oral warnings in regard to three of the matters raised and handed Mrs K a written warning.

Outcomes of the “mediation meeting” were that Mrs K believed she could return to work. However, when Mrs B discussed the meeting with the trust's chairman arrangements were made for a relative of Mrs B to deliver a letter of dismissal to Mrs K. A personal grievance was raised.

The authority found (unsurprisingly): The suspension was grossly flawed. Mrs K had no input before the decision to suspend her was made. She was not given the opportunity for any input before the “findings” of misconduct were given to her.

The dismissal was unfair because Mrs K was never put on notice that the findings involved the possibility that her employment was in jeopardy and there was a complete absence of a discussion about the penalty. In other words, a fair and reasonable employer would have allowed Mrs K an opportunity to have some input on the penalty.

An employer has two separate decisions in a disciplinary process - the first to decide if there has been misconduct and the second (if there has been) what penalty will be imposed. An employee must be given the opportunity to have input into both decisions.

The authority awarded lost wages for three months and compensation of $4000.

PS: Following my article on drug testing some weeks ago, I received an email from a reader in Perth. This reader had been successfully interviewed for a well-paid mining position, pending the outcome of a drug test. "No problems," he said, or so he thought! He failed the test, testing positive for morphine, with a re-test returning the same result. He lost the position.

He sought an independent test, which came back negative, but the employer would not accept it.

This reader sought the scientist in charge of the lab that processed his initial test. The morphine reading was so high at 390 micrograms/litre, he would have to have had 8 codeine tablets before his initial test. However, as the scientist explained, poppy seeds can give a positive result also, as high as 2000mgi in some cases.

So a word of warning - this reader's diet containing poppy seeds has cost him his job.

Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas. Email her at Mary-Jane.Thomas@prlaw.co.nz.

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