Seek advice before suspension

Last updated 08:44 03/12/2012
Mary-Jane Thomas Work To Rule
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: G was a zoo keeper for the Wellington Zoo and claimed that she had been unjustifiably suspended and then unjustifiably dismissed by the zoo, writes Mary-Jane Thomas in Work to Rule.

In June, G allegedly left the zoo's peahen in an enclosure with a large violent bird (a brolga) when the brolga was being fed. Some time later the peahen was attacked and had to be euthanised.

The employer's investigation into this incident took place some four to five weeks later and G's supervisor confirmed that G had spoken to her on the day of the incident:

"G told me that the peahen had gone in for food when she was locking away the brolga and she had locked them in together. She said that she thought that it would fly out over the top as it had done in the past when it was in with the guinea fowl. She said that she had noticed that the peahen had looked a bit slow and she had suspected it had been sick in the previous two days and that was perhaps why it was unable to get away from the brolga."

It is well known that the brolga was aggressive towards people and other animals. When G spoke with the employer during the investigation she acknowledged that she didn't take the peahen's condition into consideration when she had left it locked in the cage with the brolga.

The chief executive of the zoo became involved in the investigation and decided that a formal disciplinary meeting was required. She also decided that G should be suspended in the meantime. G first knew of the suspension when she received a letter dated August 3. The letter stated at the end:

"We wish to suspend you from duties on full pay until the meeting. If you are not in agreement with our decision to suspend, you should let us know immediately what your objections are."

By the time the disciplinary meeting took place G had changed her statement somewhat in that she said, "she had caught a glimpse of something as she was locking the cage but did not consciously realise that it was the peahen until after the incident".

The zoo's final decision was made on the basis that it considered that an elementary tenet of zoo keeping was that different animals were not to be confined in a small space unless it was known that they did not pose a threat to each other.

The Employment Relations Authority considered that just assuming the peahen would fly out of the enclosure was a fundamental failure that went to the core of G's obligations as a zoo keeper. It considered that this constituted gross negligence and was serious misconduct which warranted dismissal.

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Turning to G's suspension, however, the authority considered the following.

First, in the absence of a contractual provision allowing suspension, it is not usually justifiable. Second, in the vast majority of cases, consultation is also required before suspension is justifiable.

The authority found that in this case the zoo's letter of suspension was not so it could consult with G about suspension. Instead the letter stated that the decision to suspend her had already been made and she only had the opportunity to object rather than be consulted before the decision was made.

Because G had already been working for at least five weeks since the incident without any problem there seemed to be very little reasoning to justify her suspension. It did not appear that the employer considered whether she could have been placed on alternative duties and the authority decided that the zoo's decision to suspend constituted an unjustifiable disadvantage to G.

G's claim for unjustified dismissal was rejected, however she was awarded $1000 compensation for being unjustifiably suspended.

Too often employer clients seek my advice after they have suspended someone. Seek advice before you suspend.

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

- © Fairfax NZ News

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