Being open with employee under suspicion is critical

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Hall v Taumarunui Christian Education Trust.

One of the foundations of our legal system is the principle of natural justice which includes the right of a person to know what they are accused of and who made the accusation. It sounds simple, but often in employment situations, the close working relationship between staff can make them reluctant to speak up against their colleagues. This is one such case.

Frances Hall was employed as a junior supervisor overseeing the front of house area for the Taumarunui Christian Education Trust that provides hospitality training to youth, primarily through a training café. One of Hall’s conditions of employment was no drugs or alcohol permitted on the premises at any time. Breach of this house rule will result in instant dismissal.

Just before Christmas the man who collected the scrap food arrived and brought some beer for the team. Hall directed one of the trainees to pour a beer into a takeaway coffee cup and serve it to the man in the café courtyard. Hall later shared the beer between the staff. Two months later, Hall was off duty when she and her partner stopped by the café with vodka and shot glasses. Hall didn’t take the alcohol into the premises but two of the students were given shots by her partner.

Three months later the Trust chairperson was disciplining a student for bringing marijuana onto the site when the student brought Hall’s offending to the chairperson’s attention. Hall was promptly suspended on pay while a process was followed to look into the allegations.

A meeting was scheduled for two days later, but Hall refused to attend and provided a medical certificate. A further meeting was scheduled with the same result and the trust wrote to Hall advising her of the “preliminary decision to dismiss” stating the factors that they had taken into account including that students had been involved and the deliberate manner in which she had acted to conceal her actions. She was invited to a further meeting to provide any information and a response to the preliminary decision.

Hall attended the meeting and was dismissed. She raised a personal grievance claiming that both the suspension and the dismissal were unjustified.

Hall didn’t deny either of the incidents, although she said her partner was responsible for the second incident. The Authority found that Hall’s behaviour constituted serious misconduct. It then had to assess the process followed by the employer to determine if the process was what a fair and reasonable employer could have done in the circumstances.

With respect to the suspension, the trust did not give Hall an opportunity to have any concerns raised and an opportunity to be heard before the decision to suspend was made.

The Authority also concluded that the Trust was in error in giving a preliminary decision when Hall was unwell and had not been able to respond to the allegations. A more serious flaw in their process was the failure of the trust to provide Hall with all of the information before it when making the decision because the trust had collected written statements from three trainees which it had not disclosed to Hall. Their reason for not giving her the statements is because of concerns for the safety of the staff concerned. The Authority found that any safety concerns ought to have been raised with Hall before the decision to withhold the statements. There may have been a method for providing the information in a safe way. This was unfair and was not a minor defect.

On this basis, the decision to dismiss was found to be procedurally unjustified and the Authority had to consider remedies.

The Authority concluded that procedural errors do not result in lost remuneration. Any actual loss suffered cannot arise from the decision to dismiss if it was substantially justified. Consequently no reward for lost remuneration is appropriate.

The Authority then considered the claim for hurt and humiliation and commented that the current range for procedurally flawed processes is $750 to $4000 and settled in the middle, but the reduced the figure by half for Hall’s contribution to the situation. In the end she got $1000, which was a far cry from the three months’ pay and $15,000 she was seeking.

The critical lessons here are to give the employee a meaningful opportunity to comment before making a decision to suspend and make sure they are given all the information that has been gathered in the investigation.

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About Author

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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