Employer suspends worker during safety investigation: Worker cries 'unfair' treatment

The Employment Relations Authority (ERA) recently dealt with a case involving a dispute between a worker and his employer over an extended suspension and subsequent disciplinary process.

The worker argued that his suspension was unjustified and that the employer's actions during the disciplinary process were unfair. i

He claimed that the initial reason for his suspension changed over time and that he was kept in the dark about the progress of the investigation.

Worker’s suspension over safety incident

The dispute began at an Auckland-based plumbing and drainage company employing about 100 people. On 11 October 2022, a project manager reported that one of the company's excavators hadn't been cleaned properly after use.

The employer viewed this as a serious health and safety issue, arguing that debris could fly off during transport.

The worker at the centre of this case, a labourer who had been with the company since November 2017, had a different perspective. He argued that cleaning the roadside tracks of the excavator would have put him at risk of being hit by passing vehicles.

This disagreement led to a heated phone conversation between the worker and a contracts manager. Following this call, the worker was instructed to attend a meeting at the employer's office the next day and undergo a drug test.

Employer’s decision to suspend the worker

At the 12 October meeting, the employer decided to suspend the worker. However, the ERA found several issues with how this suspension was handled.

The employer's contract only allowed for suspension if termination was being considered, which wasn't the case at that time. Moreover, the worker wasn't given an opportunity to respond to the proposal of suspension.

A company director said, "[The employer] had health and safety concerns, and it did not matter what [the worker] said, suspension was going to happen regardless."

The worker underwent the required drug test, which returned a negative result. Despite this, the employer continued the suspension without clear communication about why.

Worker’s extended suspension

On 14 October 2022, the employer sent a letter to the worker outlining 12 allegations of misconduct, many of which were unrelated to the original incident with the excavator.

The worker's representative requested more information about these allegations on 28 October 2022.

The employer didn't respond until 21 November 2022, at which point the number of allegations had been reduced to seven without explanation.

This delay and the unexplained reduction in allegations became key points in the ERA's consideration of the case.

The ERA noted, "[The employer] made a series of allegations against [the worker], eventually gave him the opportunity to respond to the allegations, and then failed to make any findings after suspending him (which has been found to be unlawful). It is difficult to see how suspending an employee for 10 weeks, and then failing to appropriately conclude the disciplinary process, is consistent with the actions of a fair and a reasonable employer."

‘Unfair and unreasonable’ suspension?

After examining the evidence, the ERA found that the worker had been unjustifiably disadvantaged in his employment. The Authority said, "The disadvantage to [the worker's] employment was both procedurally and substantively unjustified. The disadvantage was more than minor, and resulted in [the worker] being treated unfairly."

The ERA ordered the employer to pay the worker $9,500 in compensation for humiliation, loss of dignity, and injury to feelings.

This case highlights several important points for employers to consider. The ERA stated, "to justify suspension, an employer must have good reason to believe that the employee's continued presence in the workplace will or may give rise to some other significant issue."

The ERA also said, "When the Authority considers justification for the actions of [the employer], including the decision to suspend (and any claim of unjustified disadvantage) it does so by applying the test of justification in s 103A of the Act."

Regarding the management of the disciplinary process timeline, the Authority noted, "[The employer] could have determined that the process had gone on for long enough, and that it wished to bring it to an end. [The employer] could have advised [the worker] that a meeting would be held regardless of whether his representative was available."

This case serves as a reminder of the importance of fair and reasonable employment practices—even when dealing with potential health and safety issues, employers must ensure they follow proper procedures and respect their employees' rights throughout any disciplinary process.