Ms L worked in a Health Food Store. After some discrepancies in stock levels and takings at the Store, the employer installed a video surveillance camera. Videos showed Ms L taking a box of product out of the Store without any corresponding sale. Videos also showed Ms L sending a box of product with a courier that the Store did not use, and again, there was no corresponding sale. A bottle of balm was also taken from the Store by Ms L without a sale being written up on the register.
The employer wrote to Ms L and requested that she attend a disciplinary meeting for gross misconduct. She was allowed a representative, but she was not told what the specific concerns were (mistake number one). She was not given the opportunity to look at the tapes before the meeting (mistake number two).
Unfortunately Ms L’s father passed away. The meeting was postponed but took place the day after the funeral (mistake number three). At the meeting, Ms L was shown the videos and given the opportunity to provide an explanation for each incident individually. For most of the incidents, Ms L asserted that she could not recall them.
Ms L was dismissed.
The Employment Relations Authority held that the dismissal was both procedurally and substantively unfair.
The Authority found that Ms L had not been given sufficient time to respond to the allegations of misconduct. Whilst she had been informed that the meeting was disciplinary in nature, she had not been informed of the specific incidents that would be discussed at the meeting. Unlike the employer, Ms L had not watched the videos a number of times, but only once before she had to respond. Further, no account of Ms L’s emotional state following the death of her father was considered. The dismissal was procedurally unfair.
In considering the substantive fairness of the dismissal, the Authority recognised that a dismissal is substantively fair if there has been a breach of a term that is at the heart of the employment agreement. This includes the need for trust and confidence in the employment relationship. The Authority considered that it could not be shown that trust had been lost as there had not been a procedurally fair investigation.
The Authority ordered the employer to pay Ms L three months lost wages and damages of $5,000. This was reduced by 50 percent because of Ms L’s contribution to the situation (i.e. the fact that Ms L had at the very least, failed to follow standard proceedings when selling items).
