A determination from the Employment Relations Authority last month highlighted a particularly tricky situation, not uncommonly encountered by employers, namely: What to do with an employee when a third party client refuses to have them on their premises, and there is no other available work for that employee to do.
In the case of Siale v Professional Property and Cleaning Services Limited (‘PPL’), the employer operates a cleaning company that was subcontracted to provide cleaning services to a client, referred to in the determination as DPR.
Mr Siale had worked as a cleaner for PPL for five years, the last two and a half years of his employment were solely at DPR sites. In August 2015, Siale assaulted a cleaner from another company. PPL accepted Siale’s claims that he had been provoked, but issued him with a final written warning. Unbeknown to either PPL or DPR, Siale was subsequently convicted for assault with intent to injure in May 2016 as a result of this incident, and was given a community-based sentence.
In August 2017, PPL was awarded a service contract with DPR (previously they had only been subcontractors) and a requirement of this new contract was that all PPL employees needed to be checked by the Ministry of Justice (‘MOJ’) for past convictions. It was at this point that Siale’s May 2016 conviction became apparent, in addition to a 2001 conviction for assault and wilful damage. The latter conviction had been previously unknown due to the Clean Slate Act, but this protection was removed as a result of the second conviction.
DPR were concerned about Siale’s two assault convictions, and asked PPL to provide them with a psychological risk assessment. Siale was reluctant to participate in this but eventually agreed. There was no evidence that PPL’s referral to a psychological service provider had contained the MOJ report. The risk assessment report that resulted held that Siale posed no risk, but only referred to the single event in 2015.
DPR would not accept this risk assessment given it only referred to the one incident, and wanted a second risk assessment done which included the MOJ report with the referral. PPL contacted the service provider stating that the report was inaccurate, and that since the assessment, another incident had occurred which also needed to be included. The provider said that was outside of the parameters of what had been agreed to. PPL were reluctant to ask Siale to submit to a second assessment given his resistance to participating in the first assessment.
In April 2018, PPL met with DPR and the latter demanded that Siale no longer attend DPR sites. PPL agreed to this. Siale was subsequently dismissed from PPL as the MOJ report meant there were no other sites that he could be employed on either, hence, there was no work for him.
While the Authority sympathised with PPL on the difficult situation it found itself in, Siale’s dismissal was still found to be unjustified in breach of the fair process requirements of s 103A of the Employment Relations Act 2000 (‘Act’).
The Authority held that a fair and reasonable employer in PPL’s situation would have tried to persuade DPR to at least give PPL sufficient time to put DPR’s comments to Siale for his comment and carry out a fair process. PPL should also have informed Siale that DPR had not accepted the psychological risk assessment and that failure to participate in second assessment could cost him his job. There was no indication that Siale had been aware of the request for a second assessment, and it is likely that had he been fully appraised of the situation he would have participated, albeit reluctantly.
The Authority awarded Siale $9454.31 in lost remuneration and $12,000 compensation for hurt and humiliation. The Authority declined Siale’s reinstatement application and costs were reserved.
Where an employee successfully pursues a claim in the Authority and remedies are awarded, the Authority must also consider to what extent the employee’s conduct contributed to the dismissal, usually expressed as a percentage. If the Authority finds, for example, that contributory conduct amounts to 30 percent, then the remedies ordered are reduced by that percent.
In this case, PPL argued that Siale’s contribution to his dismissal was high, given his conduct that had led to the convictions. However, the Authority did not accept this as it was not the convictions themselves that led to DPR banning Siale from the premises, given he had continued to work on DPR sites from the discovery of the convictions in October 2017 through to April 2018. Rather, it was the lack of an acceptable second risk assessment that included knowledge of both convictions that finally led to DPR’s demands, and this may have been avoided if Siale had known about the request for a second assessment and participated in one.
The take-home tip for employers in this situation is to explain to a third party who wants to ban an employee from their site, that the employer needs the concerns from the third party in writing, so they can be put to the employee, and that the employer needs sufficient time to carry out a fair process. The good faith obligations the employer owes to the employee, also require the employer to make some effort to dissuade the third party from insisting on the ban and to find out what, if anything, the employer/employee could do to assuage the third party’s concerns so the employee can be allowed back on site.
If the employee remains banned from the site and this results in dismissal, the employer will still be able to demonstrate that it had tried its best to avoid the resulting dismissal.