Be precise over reason for dismissal

Last updated 07:48 07/12/2012
Southland Times photo
NICOLE GOURLEY/Fairfax NZ
Southland Times Work To Rule columnist Mary-Jane Thomas is a partner at Preston Russell Law.

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OPINION: What is the reason for dismissal, asks Mary-Jane Thomas in Work to Rule.

Be sure you are sure. It can often be the case in employment law that an employer intends to dismiss an employee and believes there are very good grounds to do so when there may not be. One of the reasons for this is that it is easy for employers to conflate two or more issues that they have with an employee. The end result being that they may dismiss an employee and it is not clear the basis of the dismissal.

The Employment Relations Authority (ERA) recently focused on this very issue. The case involved a bus driver, Mr D, and an airport shuttle service. Mr D was employed to shuttle passengers between the airport and the long-term car park. Not long into his employment a customer complained that Mr D drove the bus like "Peter Brock at Bathurst". The customer also complained that Mr D did not help passengers with their bags and spoke with a friend throughout the whole trip.

Following the complaint, the employer investigated the matter further. This investigation led the employer to believe that Mr D had a case to answer and determined that a meeting should take place for Mr D to respond to the allegation.

At the meeting the employer was particularly concerned about the allegation of speeding as this invoked further concerns about health and safety - meaning that this was the most serious allegation and if proven could lead to Mr D's dismissal.

When Mr D was specifically asked whether he was speeding, he repeatedly said things along the lines of "I usually don't speed" or "if I speed I get a ticket". Mr D never actually rejected or accepted the allegation of speeding.

The lack of a specific response was quite unsatisfactory to Mr D's employer and it determined it could no longer trust Mr D and thus dismissed him.

Later Mr D, through his lawyer, wrote to his former employer asking for the reasons for the dismissal. The employer responded that it had preferred the customer's contention that Mr D had been speeding and accordingly terminated his employment.

When questioned in the ERA Mr M, on behalf of the employer, was quizzed on what steps he had taken to determine that the contention of the customer was to be preferred over that of Mr D. Mr M stated that he decided not to investigate the matter further, by doing such things as questioning other staff about Mr D's driving, as Mr D did not actually say he had not been speeding. Mr M said that if Mr D had denied speeding, he would have made further investigations. When questioned about what he would have done if Mr D admitted speeding, he stated that he would have given him a final written warning.

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Provided with this evidence, the ERA determined that Mr D's dismissal could not have been for speeding as Mr M had accepted that if Mr D had said that he had not sped he would have had to investigate the matter further before making his termination. On the other hand if Mr D had accepted speeding, he would have only been given a final written warning. Therefore, the only reason for dismissal could have been the fact that Mr D failed to expressly answer the question as to whether he was speeding.

The ERA determined that dismissal for the equivocal statement was unfair as Mr D had not been advised that failure to give a clear response could have been a reason for dismissal. The ERA awarded Mr D nearly $7000 in lost wages and $5000 in compensation.

This case is a clear example of why it is important to be sure of the reason for dismissing or even investigating an employee. The employer in this case raised an allegation of speeding and originally claimed that this was the reason for dismissal.

However, the employer acknowledged it was the fact that Mr D had failed to answer the questions that had led to the determination that Mr D could no longer be trusted. By conflating the failure to answer with the allegation of speeding, the employer has ended up paying thousands of dollars to its former employee when, if the issues had been separated and a bit more time taken to investigate each issue separately, dismissal may well have been justified.

- © Fairfax NZ News

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