Worker challenges employer's disciplinary process and safety investigation

The Employment Relations Authority (ERA) recently dealt with a case involving a worker who claimed unjustified dismissal and disadvantage in their employment.

The worker argued that their employer had mishandled a workplace incident, failed to follow proper investigative procedures, and ultimately terminated their employment without sufficient cause.

The case centred on a midwife employed part-time at a healthcare organisation's maternity unit, working 8 hours per week. The worker also held a separate contract as a lead maternity carer through an access agreement with the same organisation.

The disputed workplace incident

The dispute originated from an incident on 22 August 2022 during a patient transfer. The employer claimed that the worker had refused to arrange an incubator and ambulance when asked by another midwife, stating it wasn't her responsibility. However, these concerns weren't immediately communicated to the worker.

On 13 September 2022, a clinical midwife manager informally asked the worker about the incident.

The worker's recollection, as reported by the manager, suggested that the other midwife had been hostile and demanding. This informal conversation later became a crucial point in the disciplinary process.

Employer’s investigation process

The employer didn't formally raise the issue with the worker until 28 November 2022, more than three months after the incident.

Initially, the allegations focused on the worker's responsibilities during the transfer. However, as the investigation progressed, the focus shifted to whether the worker had deliberately misled the employer about her interaction with the other midwife.

The ERA found this delay and shift in focus problematic, stating: "I find that [the employer] failed to conduct an appropriate preliminary assessment of the matter prior to making the allegations. I consider this, along with the changing nature of the allegation relating to the events of 22 August 2022 indicate that there was an element of predetermination in the decision to dismiss."

The investigation and disciplinary process stretched over several months. The employer relied heavily on an audio recording of the 22 August incident, which they believed contradicted the worker's account. However, the ERA found that the employer had given undue weight to this recording without considering other factors.

Alleged procedural flaws and dismissal

The worker was dismissed on 22 June 2023, with the employer citing a loss of trust and confidence. The dismissal letter also mentioned the worker's reluctance to work with the other midwife, expressed at a team meeting on 11 May 2023. However, this concern hadn't been raised with the worker before the dismissal.

The ERA identified this as a significant procedural flaw: "I find that the dismissal was occasioned by significant procedural error in terms of s 103A(3)(b) and (c) of the Act in that there were concerns not put to [the worker] that were relied upon in dismissing her."

The ERA also criticised the employer's approach to the investigation and decision-making process: "[The employer] also failed to appropriately consider the relevant background and [the worker's] perceptions of the incident, instead relying on what was a partial audio recording. While I accept a fair and reasonable employer could have used the audio recording, I find that an unreasonable approach was taken in relying on the recording a single course of truth without considering that [the worker's] comments may have been coloured by her past experiences and her impression of the exchange."

Unjustified dismissal or not?

The ERA found the dismissal to be both procedurally and substantively unjustified. It ordered the reinstatement of the worker to her previous position.

The Authority also awarded compensation for lost wages, totalling $58,938.39, and $28,500 for humiliation, loss of dignity, and injury to feelings. In addition to reinstatement and compensation, the ERA ordered the employer to make payments for KiwiSaver contributions, back pay for relevant increases, retirement benefits, and accumulated sick leave entitlements that the worker would have received if she had remained employed.

This case highlights several important lessons for employers. Concerns about employee conduct should be raised in a timely manner. Employers should conduct comprehensive investigations, considering all relevant factors and not relying too heavily on a single piece of evidence