Unjustified dismissal? ERA looks at whether it was ‘reasonable’ for all emails to be forwarded to worker on leave
The Employment Relations Authority recently dealt with a case involving a worker who challenged their dismissal from a union, claiming it was unjustified.
The worker had been employed as a database manager from February 2018 to February 2022 and described himself as “passionate” about the union movement.
The case centered around a series of events related to the worker's concerns about a colleague's email forwarding rule, which led to an employment relationship problem, two investigations, and ultimately, the worker's dismissal.
The Authority had to examine the parties' actions and determine whether the dismissal was justified and if the employer had breached its duty of good faith.
As part of his IT responsibilities, the worker discovered in July 2021 that a colleague, who was responsible for covering union member queries when staff were on leave, had set up an “email forwarding rule” that ensured all emails to absent staff were forwarded to him.
“After earlier capturing only external emails, [the colleague] changed the rule to cover all emails,” the Authority said.
Concerned that this could lead to the colleague accessing emails related to staff bargaining, the worker changed the forwarding rule and raised the issue with other staff members.
The worker's presentation to the staff group led to an employment relationship problem being raised with the employer.
An external investigator was appointed, but the employer found the result unsatisfactory and started a second investigation, which cleared the colleague of any wrongdoing.
The employer was “unhappy” with several aspects of the worker's conduct regarding the email issue and initiated a disciplinary investigation into four concerns that could amount to serious misconduct.
The worker's representative became involved, and mediation was scheduled but later cancelled by the worker.
In December 2021, the employer requested the worker to attend a disciplinary meeting, but the worker did not attend, citing his representative's unavailability.
The worker then complained to the employer's national executive about the handling of the non-management group's complaint and the disciplinary process, alleging it was in retaliation for raising the complaint against the colleague.
“[The employer] was unhappy with several aspects of the [worker’s conduct] regarding the emails issue, concerned he had breached his employment obligations including privacy and fidelity,” the Authority said, adding that he was on “an unreasonable crusade which was disruptive to the organisation.”
In January 2022, the employer informed the worker that the disciplinary meeting was suspended pending an investigation of the worker's complaint.
However, the employer's national secretary later met with an advocate and concluded that the worker should be dismissed.
On 1 February 2022, the employer informed the worker via email that he had failed to attend disciplinary meetings, the allegations of serious misconduct had been upheld, and he was summarily dismissed.
The allegations included failing to follow a lawful instruction, breaching his employment agreement, and breaching his duties of fidelity and privacy.
The Authority noted that initially, there was a high level of staff concern about the colleague potentially reading the non-management group bargaining emails, but over time, the concern dissipated, with many staff becoming less worried or more persuaded that the colleague would not have acted improperly.
The worker, however, remained one of the few people who were still concerned about the colleague's actions.
As for the employer’s dismissal decision, the Authority found that it “jumped from advising the [worker] that the disciplinary process was suspended, to making made its final decision without letting [him] know it was doing so or hearing from him on that decision.”
Thus, it said that the worker was unjustifiably dismissed.
