Process, process, process

Sacking. Not as straightforward as a hard-done-by employer might think.
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Sacking. Not as straightforward as a hard-done-by employer might think.

Even terrible employees and those acting in clear breach of company policy are entitled to a fair dismissal process. Yet another decision from the Employment Relations Authority reminds us that when it comes to employment law the golden rule is process, process, process.

Mr H was employed as a cruise ship engineer. It looks like Mr H didn't like his employer much – he identified a series of problems which he blamed the employer for.

To make it better, he then complained about these problems to one of the employer's clients, saying he didn't want the next worker to have "surprises lurking to bite…where it hurts".

In the employer's view, Mr H's comments caused the employer to be "discredited and undermined" so that they actually lost business, having some upcoming work outright cancelled. They suffered a financial loss as a consequence.

Employers will likely have a gut feeling of sympathy for the HR manager who fired Mr H over the phone, following a series of emails outlining their concerns. The company described Mr H's actions as "unethical" and "in breach of code of conduct".

There doesn't seem to be a lot of argument about that. Mr H's emails were clearly damaging to the employer, in fact the ultimate remedy was reduced to reflect this "blameworthy" contributory conduct.

And yet… the ERA found that the dismissal process was flawed, and not only was Mr H entitled to lost wages (at over $37,000) but he was even entitled to $10,000 as compensation for emotional harm (reduced to $7000 to reflect Mr H's contribution to the dismissal).

The key problems were identified as: a failure to investigate the emails properly when they were sent, failure to investigate the underlying issues identified by Mr H in those emails, evidence of premeditation, failure to put all their concerns to Mr H in full, failure to let him respond to certain key issues, failure to fully consider his explanations, inadequate opportunity to respond to proposal to dismiss, and finally that the dismissal as a whole was not substantively justified.

This will still probably sound like a harsh result to a lot of employers.

Indeed, it's easy to see why so many go wrong – it just feels, instinctively, like employers should just be able to get rid of the kinds of employees who do damage to their employer, or who act in breach of the company rules.

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But the law's the law, and the law says that any employee, even the worst employee, is entitled to a full and fair disciplinary process.

This may seem unfair to employers, but for every terrible employee who doesn't "deserve" the niceties of a formal process, there are likely a whole heap more who really need the protection of the dismissal process to guard against bias, tempers and unjustness.

It's unfortunate, but it does happen.

You have to remember that we're talking ultimately about a person losing their job, and that can be devastating and can have serious consequences.

So, faced with a difficult employee, take a deep breath. Look to your process and follow it properly. Seek legal advice if you have to, or if there's anything you're unsure about. Above all be fair – your conduct needs to be above reproach.

It's probably also a good time to think about hiring practices.

Remember that, provided you're not discriminating against someone on a prohibited ground (like race, sex, disability) you can choose who you want to employ.

If you don't like someone, if they give off a bad vibe or you feel like they just won't fit in with your company, you're not under any particular obligation to hire them.

Make sure that, as far as you can, you find the right person - it might save you a lot of stress (and maybe large sums of cash) in the future.

Riki Donnelly is a partner in Preston Russell Law

 - Stuff

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