The Employment Relations Authority has dismissed an employee’s personal grievance claim for unjustified dismissal following a disciplinary investigation.  The ERA, however, found that the employee was unjustifiably disadvantaged by being suspended.

The employee was instructed to wear the company uniform but refused to do so, claiming she was allergic to the material.  A compromise was agreed by which a cotton uniform would be provided instead.  The employee still failed to wear the uniform and when challenged was rude and abusive towards her supervisor and used threatening language including that she was recording the conversation.

The employer raised disciplinary allegations and sought the employee’s response to the allegations.  It found the allegations proved and that they were serious misconduct.  It gave her an opportunity to comment on her proposed dismissal and extensions of time to respond.

The ERA found that the allegations were properly raised and investigated and the decisions that they were serious misconduct and she should be dismissed were reasonable in the circumstances.  It rejected her unjustified dismissal claim.  However, the employee had been sent home on pay pending the investigation without her agreement and without any opportunity to comment on the suspension.  This was an unjustified disadvantage.

The ERA awarded $6,500 compensation for the failure to give her the opportunity to comment on her suspension.

The employer in this case got its processes and decisions 99% right, but tripped up on one small requirement. No doubt it is very galling to have to pay compensation to someone you correctly dismissed for serious misconduct.

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Alan Knowsley

Employment Lawyer
Wellington