Dismissal unjustified after week away

Last updated 08:40 26/02/2013
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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: Mr T, a dairy farm worker, was dismissed by his employer (Mr L) on two grounds, writes Mary-Jane Thomas in Work to Rule.

First, that he had allegedly admitted to smoking marijuana, and second, that Mr T had taken "unauthorised leave" from work and therefore abandoned his employment.

When he returned to work after a week's absence, Mr T was handed a letter dismissing him. Disputing both of these grounds for dismissal and challenging the procedure adopted by the employer, Mr T sought compensation for the dismissal on the basis that it was unjustified.

Mr T left work on May 31 and did not return until June 7. Mr L argued that the week off was without his authorisation and relied upon an "abandonment" clause in the agreement that stated that the employee was deemed to have abandoned his employment if he failed to attend work without notifying the employer.

However, the clause also provided that ". . . before an Employee is deemed to have abandoned their employment, the Employer will take reasonable steps (telephone and writing to the address provided by the Employee) to warn the Employee that the Employer intends to rely on this clause, in the event the Employee fails to contact or attend for work."

Importantly, there was no formal process in relation to taking time off. In the past Mr T would simply text his employer before his break to notify him of any absence from work. Mr T said that he was simply taking leave (he had to deal with matters with the police which he had told Mr L about) and that he hadn't abandoned his employment at all. Mr T said he told the employer that he was taking the leave.

The Employment Relations Authority held that because there was a real conflict of evidence about whether or not the leave taken was authorised, and how the employer was normally notified of any leave, a reasonable employer could not have concluded that Mr T had "abandoned" his employment.

In any event Mr L could not rely on the abandonment clause in the employment agreement because he had not properly followed the process set out in the clause.

Mr L knew that Mr T had police matters to attend to but made no further investigation into this. He failed to consider other options before concluding that Mr T had "abandoned" his employment, and failed to contact, warn or give Mr T any opportunity to respond to the allegations. In the event of a potential abandonment of employment, the agreement required the employer to contact Mr T before making any decision.

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That makes sense.

Many employers seem to think that if there is a clause that says something along the lines of "If you don't come to work for three days you will be deemed to have abandoned your employment" can be relied upon to dismiss someone without asking for an explanation. It doesn't.

What if someone didn't show up for work for three days without telling you and it turned out they were in a coma? At the very least if someone hasn't showed up efforts need to be made by the employer to find out why and ask for an explanation.

The employer almost "tacked on" a second reason for dismissal and that was because a month before the dismissal a conversation took place between Mr T and Mr L in which Mr L claimed that Mr T admitted to smoking marijuana. Mr T later denied that he made this admission and Mr L knew that Mr T denied it. Significantly the employer did not take any action at the time of the so-called admission and it seems it was only actioned a month later when the letter of dismissal was handed to Mr T.

As an aside, employers need to be careful about distinguishing between recreational drug use and employees being under the influence of drugs or alcohol at work. In my view (particularly in a farming environment) it will almost always be grounds for dismissal if an employee is impaired by drugs or alcohol at work.

Remember, though, to check employment agreements for what they say about, for example, smoking marijuana on days off. An admission to taking drugs outside of work may not at all justify disciplinary action. Further, beware of drug tests for marijuana use - they may indicate the presence of cannabinoids but will not tell you when the employee was under the influence.

Procedurally, Mr L was in breach of the Employment Relations Act in relation to the dismissal as a whole. No opportunity was given to Mr T for input or comment on either allegation, nor was there any investigation or evidence gathered in regards to the alleged admission to the use of marijuana.

While the authority was not satisfied that the claims made by Mr T warranted any award of compensation for hurt, humiliation and loss of dignity, Mr T was awarded $2895.53 for lost wages.

- The Southland Times

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