Sort out molehills before they become mountains

OPINION: The proverbial molehill made into a mountain was the subject of a recent decision by the Employment Relations Authority, writes Mary-Jane Thomas in this week's Work to Rule.

Mr G worked for McDonald's. One day, a customer called him a "f***ing homo" while friends of his were in the restaurant. At the authority hearing he said he felt humiliated by the abuse and did not want to be teased by his friends about it, so when they pressured him to provide them with free food, he did. He voided the costs of their orders and told a co-worker he would pay for the orders at the end of his shift.

His shift manager later asked him if he had given burgers away for free. Mr G said he would pay for the orders later. When he went to pay for the orders, his manager said he should not be doing this himself and a co-worker stepped in to process the payment.

Although Mr G said he intended to pay the full price for the orders, the co-worker reduced the price (charging him as if it was food for him) and he paid $4 for food worth $10. Mr G did not tell the other employee that the meal had not been for him.

Mr G was required to attend disciplinary meetings, which resulted in his employment being terminated. He raised a personal grievance.

The authority looked at the employer's decision to dismiss Mr G on the objective basis of what a fair and reasonable employer would have done in the circumstances at the time.

There were various faults with the investigation conducted by the employer, including:
1. Inadequate inquiries being made
2. Failures to interview the shift manager
3. A reliance on unreliable second-hand accounts
4. The basis of the investigation changed without Mr G being advised
5. A failure to find there was some payment despite the allegations of stealing
6. A reliance on what other employees did in similar situations rather than what had actually occurred
7. Policies relied upon were not known by employees.

The authority found that Mr G did not know the actual nature of the alleged serious misconduct and the dismissal had been, therefore, unjustifiably carried out. In deciding to dismiss Mr G, the employer relied on the view that whenever someone was caught giving away food "99 per cent of them always said they intended to pay for it later" but didn't do so. They were really alleging that Mr G was lying, but this wasn't the case here. Since Mr G had given away food, it was found that he had contributed to the situation by 50 per cent.

Ironically, the authority found if the employer had carried out reasonable inquiries, they would have found Mr G had acted in a way that could have amounted to a serious breach of the employees' Code of Conduct and his dismissal would have been justifiable.

What started as orders at McDonald's worth $10 had blown into an employment relationship problem involving many thousands of dollars.

The authority found that the parties should have been able to settle this rather than going to a hearing. No remedies were awarded to Mr G for his dismissal.

ONLY three weeks to go to the Gulp Grind & Gallop and I am now starting to panic – not about the run and not about the cycle but about having to run from the pool to my bike in a swimsuit!

To all those people who have said to me that the main thing stopping them from doing the full triathlon is having to be in a swimsuit in a crowd I say GET OVER IT – if I can, anyone can.wMary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles.

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

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