Dismissed over alleged 'gang affiliation'? Worker questions disciplinary process

It underscores the importance of thorough and fair investigations, clear communication of concerns, and considering all relevant factors before making decisions that impact employment.

Background and initial concerns

The worker, a charge hand with 11 years of service, was dismissed in September 2022 following allegations of aggressive and intimidating behaviour towards a team leader and an operations manager. The incidents in question occurred in late July and early August 2022.

The employer's regional supply chain manager investigated two main concerns:

• An alleged aggressive interaction with the operations manager on 2 August 2022, during which the worker was accused of yelling, pointing fingers, and making disrespectful comments.
• Two incidents on 29 July 2022 involving alleged failure to follow instructions from the team leader and refusal to remove cartons from a work area.

The investigation process involved gathering statements from witnesses and reviewing CCTV footage of one incident. The worker was suspended on full pay during the investigation.

Context of the workplace issues

The case unfolded against a backdrop of ongoing workplace tensions. The worker had a history of disciplinary issues dating back to 2016, including previous warnings for aggressive communication.

However, the ERA noted that despite these past incidents, the employer had not provided formal coaching or training to address communication issues.

The workplace was also undergoing changes, including the introduction of new equipment and revised operating procedures.

These changes led to disagreements between the worker and management, particularly regarding safety concerns about new forklifts being trialled in the distribution centre.

Key issues in the disciplinary process

The ERA identified several issues with the employer's disciplinary process:

1. Failure to disclose concerns about alleged gang connections: The employer had formed a belief that the worker had gang affiliations, which influenced their assessment of the situation. However, this concern was never raised with the worker during the disciplinary process.
2. Undisclosed concerns from a staff event: The employer had formed negative impressions of the worker's behaviour at a staff event on 14 July, but these concerns were not formally communicated or investigated.
3. Limited opportunity for comment and corroboration: The ERA found that the employer's approach to gathering information from other workers was cursory and lacked follow-up.
4. Individual focus on the worker: While other employees were involved in some of the incidents, only the worker was subjected to disciplinary action.
5. One-sided view of organisational values: The ERA noted that the employer failed to consider how the worker's actions might align with certain aspects of the company's values, such as speaking openly about concerns.

The worker's perspective

The worker acknowledged that he had a blunt communication style but argued that his actions were motivated by genuine concerns about workplace safety and procedural issues.

He claimed that he was merely voicing concerns shared by many of his colleagues, particularly regarding the safety of new forklifts being trialled in the distribution centre.

The worker also contended that he had not received adequate training on new operating procedures before being asked to sign off on them. This formed part of his explanation for refusing to sign a revised standard operating procedure on 29 July.

The ERA's decision

The ERA concluded that the worker's dismissal was unjustified. The Authority emphasised that the employer's failure to disclose key concerns, particularly about alleged gang connections, was a significant flaw in the process:

"As an influential factor in his assessment, [the manager] should have disclosed to [the worker] his belief about a supposed gang affiliation so [the worker] was given an opportunity to respond to that concern."

The ERA also criticised the employer's reliance on unsubstantiated rumours and impressions:

"Rumours and impressions that affected [the manager's] decisions were undisclosed and unchecked. Although he denied it, those rumours and impressions more likely than not led [the manager] to believe [the worker] had behaved in the way alleged by [the operations manager] and [the team leader] and, through his rumoured affiliation, also exerted some influence over other workers in a way that was disruptive to [the employer's] business."

Regarding the application of organisational values, the ERA noted:

"While [the manager] said the concern investigated about [the worker's] conduct on 2 August was not about what he said, but how he said it, robustly pressing concerns about the safety of using forklifts with fogging windows also appeared to be within the scope of the values expressed in the code of conduct."

Remedies and reinstatement

The ERA ordered the worker's reinstatement, with the option for the employer to place him in a different role or location.

The Authority also awarded lost wages, reimbursement of KiwiSaver contributions and holiday pay, and compensation for humiliation, loss of dignity, and injury to feelings.

In explaining its decision to order reinstatement, the ERA stated:

"The findings made in this determination showed [the employer] had not fairly and reasonably established grounds for its declared loss of trust and confidence in [the worker]."

The ERA's decision emphasised the importance of fair and thorough disciplinary processes, transparent communication of concerns, and the need to consider all relevant factors before making decisions that significantly impact an employee's livelihood and reputation.