Can personal circumstances justify gaps in employer communication?
The Employment Relations Authority (ERA) recently dealt with a case where a worker challenged his dismissal after being held in custody for nearly five weeks, during which time his only communication with his employer came through his partner.
During his absence in April and May 2023, the worker missed his scheduled shifts at a lime quarry company. While his partner made two attempts to inform the employer about his situation, the employer argued this communication was insufficient and ultimately dismissed him for serious misconduct.
The worker later challenged this decision through a personal grievance claim, arguing that his circumstances in custody prevented direct communication, and that attempts had been made through his partner to keep the employer informed of his situation.
The employment relationship began in July 2014 when the worker started as a quarry operator. His circumstances changed in April 2023 when he was arrested and detained for an incident unrelated to his employment.
His first missed shift was scheduled for 12 April 2023. The following day, his partner contacted the night shift supervisor's wife, explaining his absence. This information was then passed to the operations manager.
"[The employer] had no information about any charges laid against [the worker], including any hearing date and as a result it had no understanding of when he might be able to return to work," the company stated in its initial disciplinary letter to the worker.
The human resources and health and safety manager tried unsuccessfully to contact both the worker and his partner on 18 April 2023. The next update came on 1 May 2023, when the worker's partner informed the operations manager about his continued detention at the Otago Corrections Facility.
During the subsequent disciplinary meeting on 15 May 2023, the worker explained that while he had contact with family members and eventually his lawyer during detention, he hadn't arranged for formal communication with his employer.
As noted in the ERA's findings, "[the worker] accepted that there needed to be good communication with [the employer]. And he accepted that he had not contacted [the employer] whilst in custody, with his explanation being that he was in custody."
The employer's concerns extended beyond the immediate absence. The Employment Relations Authority recorded that "[the employer] had no guarantees that [the worker] would be able to attend work in the future without further absence and, importantly, if further absences occurred it had no confidence that [the worker] would properly advise it of what was occurring."
The disciplinary process concluded with the employer determining that the worker's actions constituted serious misconduct under his employment agreement.
"[The worker's] failure to communicate during his absence and his failure to engage over possible further absences given the pending criminal charges had undermined the trust and confidence [the employer] had in him," the Employment Relations Authority noted from the employer's final decision.
In examining both procedural and substantive aspects of the dismissal, the ERA found the employer's actions were justified.
"[The employer] had an employee who went missing for nearly five weeks without properly explaining why at the time and it had genuine concerns this could happen again if it continued to employ that employee," the Authority stated.
The Authority determined that "in the circumstances dismissal without notice was appropriate," finding the employer's actions aligned with what a fair and reasonable employer could have done.
The Authority reserved the matter of costs, directing both parties to attempt resolution between themselves within 28 days of the determination, with provision for the employer to lodge a memorandum on costs if needed.
