Investigate allegations with care

WORK TO RULE

MARY-JANE THOMAS
Last updated 09:44 11/03/2014
Mary-Jane Thomas
FAIRFAX NZ
Southland Times Work to Rule employment law columnist Mary-Jane Thomas

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OPINION: This recent decision of the Employment Court confirms how important process is when investigating possible misconduct. Ms G was employed as the facility manager for a rest home in Motueka.

In addition to her role at the rest home she was also required to oversee an improvement of another facility owned by the employer, and work part-time at another. These extra roles meant Ms G spent less time in her main management role at the Motueka Home.

In 2011, an audit of the Motueka facility was undertaken by an external agency appointed by the local health board. Based on an allegation that in February 2011 Ms G had forcibly administered medication to a resident, the auditors placed the facility under temporary management, while Ms G was on annual leave. When she returned to work on July 11, 2011, Ms G was suspended without notice from her employment.

On July 22, 2011, the employer advised her that an investigation had been completed and alleged that Ms G had: made intimidating and threatening remarks to staff and residents; physically and verbally abused residents; yelled and was rude to staff and residents; and made various management errors. The letter contained little direct evidence. By direct evidence I mean statements from the complainants saying what had occurred.

Following that letter Ms G requested more information. On August 8, 2011, the employer made further inquiries with staff and Ms G then made submissions on the allegations at a disciplinary meeting three days later on August 11, 2011.

On August 15 the employer said it would consider matters before making a decision, and then a few days later it narrowed the allegations (withdrawing the intimidating and yelling at staff and residents due to insufficient evidence) and added that it had lost trust and confidence in Ms G. Finally, by teleconference with Ms G and her lawyer on September 30, 2011, Ms G was dismissed.

In the first instance, the Employment Relations Authority held, over a nine- day hearing, that Ms G was not unjustifiably suspended or dismissed and that the company was justified in dismissing her based on the various allegations, and it ordered her to pay $33,000 in costs to the company.

The Employment Court overturned this and held instead that the dismissal was not what a fair and reasonable employer could have done in the circumstances.

The Court found that based on the initial allegations, the suspension of Ms G in the circumstances was justified.

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But the dismissal was unjustified both substantively and procedurally.

The Employment Court found that none of the allegations made by the employer was substantiated. The evidence produced by the employer before the court was defective because in relation to the forcibly administering medication incident, and the use of physical and verbal abuse, the residents themselves did not complain, but a staff member complained who the court said misinterpreted the scene.

The yelling and derogatory remarks by Ms G to staff and residents were in fact jovial "banter" between them, again misinterpreted by other staff members who did not like Ms G personally.

Further, alleged omissions in Ms G's management of the facility could not alone be a substantial basis upon which to base a dismissal (due to staff having differing views about management and some staff strongly supporting Ms G), nor could any of the other allegations.

Adding to the issue were the procedural failures of the employer in the investigation itself. While the employer stated in its letter on July 22 that it had investigated the issue, the employer had to return to the facility on August 8, 2011, to make "further inquiries" following Ms G's requests for more information. This was over a one-day visit to the Motueka home. No interview notes were provided to Ms G before the disciplinary meeting. This meeting was not conducted fairly; the employer did not give Ms G and her lawyer time to respond, or genuinely consider the explanations provided during the meeting. It appeared as though the employer had already decided that the outcome was to be dismissal.

Remedies

Under the Employment Relations Act 2000, reinstatement may be ordered along with other remedies if practicable and reasonable to do so. The Court granted Ms G's application to be reinstated to her position, because the employer could not provide any substantial reasons why a reinstatement would be impracticable or unreasonable.

Ms G received was awarded lost wages and benefits from the date of her suspension, and $20,000 in compensation for hurt and humiliation.

Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles

- The Southland Times

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