Court says 'significant degree of confusion' compromised fairness
The Employment Court of New Zealand recently dealt with a case involving an unjustified dismissal and disadvantage grievance.
The Court held that the employer, a union, failed to conduct a fair process and the dismissal of the worker, a union organiser, was unjustified.
The case highlights the importance of following fair processes in employment investigations and disciplinary matters. It also emphasises the need for employers to consider all relevant information before deciding on disciplinary action, including the dismissal of an employee.
The worker was employed as a union organiser with a union that focused on supporting worker rights. The worker was seen as “a good fit” for the organisation, partly because of his links to a migrant workers' association, which the union encouraged him to continue.
In 2018, the worker received a Facebook friend request from an employer who claimed to have a shared interest in migrant exploitation. The worker and the employer exchanged messages, which became increasingly personal, and they agreed to meet.
During their discussions, the employer disclosed that she was having employment difficulties with one of her employees, who was supported by the migrant workers' association. The issue related to the alleged non-payment of wages and a premium for employment.
A meeting was arranged between the employer, the employee, and representatives from the migrant workers' association. The meeting was scheduled to occur after hours at the union's offices, with the purpose of resolving matters between the employer and her employee.
The worker attended the meeting and was asked to make a recommendation on how matters could be resolved, which he did. The employer and the employee signed an agreement recording the terms of the resolution, but the employer did not make the agreed payment.
Two years later, the employer contacted the union, complaining that she had been harassed by two of its staff members, including the worker.
The employer threatened to go to the media if the union did not address her concerns. The union commenced an investigation, which led to the worker's dismissal three weeks later.
The court found that the union's investigation was limited in scope and failed to consider all relevant information. The investigation involved considering the employer's communications and attachments, putting aside the contested communications and the allegation of sexual harassment, and considering the worker's emailed response and what he had said at the meeting.
The investigation did not involve further inquiries, such as checking whether the worker had visited a workplace on his trip to meet the employer, as he claimed, inquiring into the authenticity of the messages provided by the employer, or considering the union's vehicle usage and resources policies.
The court emphasised the importance of considering the resources available to the employer in assessing the justification for their actions. As a well-resourced organisation with knowledge and understanding of employment requirements, the union was expected to follow a fair process.
"E tū's credibility as a legitimate trade union is severely compromised by your actions, and the trust and confidence necessary in an employment relationship has been destroyed by your actions. This is serious misconduct," the union’s letter to the worker said.
The Court found that the reasons for dismissal stated in the letter were inconsistent with the concerns that emerged during the hearing, which focused on the worker attending the meeting for an employer rather than an employee.
The union's witnesses said their concern about the worker's lack of insight into the role of a union organiser and the appropriateness of attending a mediated meeting with an employer. However, these concerns were not clearly explained to the worker during the disciplinary process.
The court held that the worker was unjustifiably suspended and dismissed. The union failed to follow the procedures set out in the collective agreement when considering whether to suspend the worker.
The union did not take all practicable steps to avoid suspending the worker and did not provide him with an adequate opportunity to respond to the proposal.
"The suspension was rushed and [the worker] did not have an adequate time to engage on the issue. He was entitled to expect that suspension would be a last resort and that his employer would have properly considered alternatives."
The court found that there was a lack of clarity as to who the decision-maker was in the disciplinary process. The worker and his representatives understood that the National Secretary was the decision-maker, but the union's witnesses were adamant that the Assistant National Secretary was the decision-maker.
The court found that there was a significant degree of confusion about who the decision-maker actually was, which compromised the fairness of the process.
The court also found that the union did not properly consider alternatives to dismissal, such as coaching or training. The decision-maker's concerns about the worker's lack of insight were not clearly explained to him during the disciplinary meeting, denying him a full opportunity to respond.
"Alternatives to dismissal must be considered. There is no evidence that E tū considered whether its concerns might otherwise be met, for example by coaching or training."
The court noted that the union's stated grounds for dismissal developed over time, from concerns about the worker's involvement in the meeting to concerns about the worker acting for an employer rather than an employee.
The court found that the union's failure to accurately record the reasons for dismissal compromised the worker's position and reinforced the lack of justification for the dismissal.
Consequently, the court awarded the worker $25,000 in compensation for hurt, humiliation, and loss of dignity, as well as reimbursement for 12 months' lost remuneration.
The case serves as a reminder for employers to conduct thorough and fair investigations, consider all relevant information, and explore alternatives to dismissal when dealing with employee misconduct.
