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Magon v NZ Castle Resorts and Hotels Ltd

Sometimes it is astounding to read how people become so tied up in trivial issues that it ends up in the Employment Relations Authority. This story is about a man losing his job for parking in the wrong place.

Mr Magon was employed by Castle Resorts and Hotels (Castle) in 2006, as a handyman and the following year became the assistant chief engineer. The chief engineer was provided with a car park but Magon, like the other staff had to pay $5 per day for parking. When his boss was away Magon was allowed to use his park for free.

In November 2011 Magon was called to a meeting and given a final warning for “failure to obey an express instruction and dishonesty” because he deliberately didn’t pay for his parking.

There was a further incident in March 2013 and again in August 2013 for a ‘recurring infringement of parking on site without paying’.

He was given a verbal warning for each event.

In December2013 he parked in a resident’s carpark and was given a final warning for failing to obey an express instruction and dishonesty for the parking. In March 2014 a further incident occurred with another final warning. Three months later there was another incident and Magon was finally dismissed and raised a personal grievance.

For each of the events Magon had an explanation. The boss was away, or he believed he was away that day; a resident had given him permission to use his park, or he believed the resident had given permission, and once his car was broken down and he was waiting to get assistance.

The employer argued that the cumulative effect of the series of similar acts of misconduct justified the dismissal, which presupposes that the previous disciplinary action was in itself justified.

The employment agreement specified the process for disciplinary action, stating that ‘the employer follows a three-step disciplinary action procedure that is designed to be corrective rather than punitive’.

On the basis of this undertaking, the first warning was found to be unjustified – it was immediately punative.

The employer did not thoroughly check the explanations given by Magon as to whether they were genuine explanations, before issuing warnings.

The warnings were inconsistent and it was not until the last warning that Magon was advised that dismissal for further breaches was a possibility.

Two of the warnings had a time frame of 6 to 12 months where repeated behaviour may result in further warnings. The authority found that this was inconsistent and unfair to Magon.

It also concluded that the findings of dishonesty were unreasonable.

The authority commented that an employer is not required to conduct a trial…but there are some fundamental requirements of natural justice which are appropriate.

Employers are entitled to prefer the complainant’s version of events provided it approaches the fact-finding with an open mind and dealt on a reasonable basis with the conflicting accounts presented.

Both parties lost.

Magon succeeded in getting another job but was unable to pass a required qualification to keep it and was still unemployed 18 months later when the hearing occurred. He was awarded three weeks lost wages (not the 18 months he expected) and $8000 hurt and humiliation, both of which were discounted by 25 percent for contribution.

The employer had to pick up both parties’ costs and pay the remedies above (it might have tallied up to $30,000).

The employer lost a good worker, incurring the replacement, retraining and down time associated with replacing someone, and Magon lost his job over $25 car parking fees spread over three years.

Instead of looking to find a solution, both parties were dug into a contest of wills over a matter of principle.

It was the employer’s responsibility to step back and look for another way around the problem without getting blinded by the contest of wills.

There was no policy preventing staff from using resident’s car parks, they didn’t check if he had permission from the resident, they didn’t prompt him to rectify the situation when he was out of line, they just went into disciplinary action.

There are some situations where an employer absolutely must not compromise but the process needs to be watertight when it is over a seemingly trivial issue.

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Anne Aitken

Anne Aitken is a highly experienced Human Resources professional who focuses on helping employers strengthen their organisations through working with their people. email: anne@anneaitken.co.nz | www.anneaitken.co.nz

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