What happens when one of your employees comes to you and says, "I just can't work with him any more. We are totally incompatible", asks Brian Richardson in Work to Rule.
OPINION: Employers do have rights in that situation, but they have to be careful about how they exercise them.
In employment law fairness and justice are paramount, as is the application of a fair process.
The Employment Relations Act sets out guidelines as to what an employer must do in a situation where there is an allegation that relationships have broken down, or where there is any issue that may impact on an employee's security of employment.
In this case the employee's cry for help must be answered by the instigation of an investigation. The employer cannot ignore the call. Good faith says that the parties to an employment relationship must be "active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative".
This means the employer must be responsive and respond to the cry for help.
Whatever the employer does, they must not jump the gun and think that the person crying "help" is totally in the right and take action against the person the employee can't work with.
If the employer sees there could be a problem with the actions of a particular employee, then they are obliged to put those concerns to that person and seek an explanation. In this scenario it is highly likely there will be parts of the explanation that will reflect on the actions of the person crying "help" and that the employer will have to go back to them, also for an explanation.
Once the employer has agreement on what are "agreed facts or circumstances" and agreement on what is disputed, then the employer can exercise a judgment call and make a decision.
The decision could be to take sanctions against one or both of the employees involved. As with everything involved in employment, the employer has to go back to the employment agreement and see if there is a provision in there that coincides with the situation.
It maybe that there is something and the agreement says what the employees have been doing to each other is misconduct or even serious misconduct, but the important action by the employer is to look at the agreement and apply its rules or guidelines fairly and consistently.
It can be that the employer decides it is time one or both of the employees should go.
Before the employer takes that rather drastic step, they have to be satisfied they have taken all reasonable and practical steps to try and bring the two employees back to the point where they can work with each other. This may never happen, but the employer has got to try and has to give the employees the opportunity to reconcile; knowing that if they cannot get back to working together in a respectful and constructive way then they could well lose their job(s). The employees need to know and understand the consequences of being unable to work together.
Employers may get to the point where they feel they cannot work with an employee - they become incompatible. The same rules and guidelines will apply.
The infringing party (usually the employee) must know there is a problem; be given an opportunity to explain their behaviour; have that explanation given due consideration; and then be told what the expected behaviours are and what will be the consequences if they do not behave to those expected standards.
That is only fair. And if it is not fair then the employee should take a personal grievance and will probably win their case.
If you are in a similar situation where there is incompatibility, then please talk to your employment adviser for help and assistance. A little time and effort in getting things correct, can save a lot of heartache down the track.
» Brian Richardson is an employment and human resources adviser at Preston Russell Law. E-mail questions to: email@example.com.
- The Southland Times