Evidence at the Tribunal was that her behaviour in the work place was always an issue although up to the incident which lead to her dismissal it had never been dealt with in a disciplinary context. She was described by the employer as “a very strong person who was over loud about her opinions”. There was evidence of her regularly “clashing “with other staff.
Ms M.’s immediate Manager complained in writing to the employer about Ms M.’s “attitude towards him”. The employer wrote to Ms M. setting out the nature of the allegations and convened a meeting to discuss the issues. She was advised prior to the meeting that the matter was serious and could result in her dismissal and was encouraged to bring a support person to the meeting.
The meeting took place. Two work mates of Ms M. provided letters of support. The person who investigated and made the final decision to dismiss Ms M. discounted the evidence provided by the two fellow workers on the basis of the strong evidence that they had colluded.
The work mates told the Authority that they had not been asked by Ms M. to write letters of support and did not have the letter of complaint by the supervisor in front of them when they wrote their letters. They also said they were not physically together when the two letters were composed. However the letters from the two work mates were so similar in structure that the Authority said they suggested that one person may have copied the other.
The employer also interviewed two previous Managers who had had Ms M. working for them and they confirmed that they had had similar problems with her that the supervisor was complaining about.
The employer formed the view that Ms M. had been guilty of serious misconduct and that dismissal was a likely response. A letter was sent out to her which set out the nature of the findings against her and proposed a further meeting which the issue of penalty and the other findings that the employer had made could be the subject of further input from Ms M. There was a further meeting and after that meeting Ms M. was dismissed.
The issue for the Authority was whether a fair and reasonable employer having conducted a proper investigation would reach a decision to dismiss in the particular circumstances of the case.
The employer had an obligation towards the supervisor to provide a safe work place. The supervisor had gone as far as formally advising his employer of the medical consequences for him of the behaviour he was complaining about. The employer had an obligation to protect him from harm just as they had an obligation to conduct a proper investigation to ensure the allegations against Ms M. were in truth made out.
The Authority concluded that the employer had acted in a fair procedural manner and objectively looking at the case a fair and reasonable employer would have reached a decision to dismiss in such a case.
“Nothing I have heard in the evidence satisfies me that the employer’s process was anything other than fair. The allegation was put to Ms M. fairly, she was given a proper opportunity to respond, encouraged to seek support, and had her views considered. The employer then investigated further by speaking with Ms M.’s witnesses and her former Managers and then formed provisional conclusions which it advised to her in writing.”
This case is an example that if employers conduct a full and fair investigation a dismissal is far less likely to be successfully challenged.
This Saturday my beloved Blues are playing Woodlands at 3pm at Balmoral Drive . Come along and watch the game and pop into the clubrooms afterwards for one of Charlotte’s famous toasted sandwiches.
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
