The facts
Mr S was a produce manager at a supermarket, including working three out of four Saturdays. Mr S approached his employer for permission to have all Saturdays off work. A discussion resulted in a misunderstanding whereby Mr S thought he was allowed to have Saturdays off work, but the employer thought the matter had not been decided and the normal pattern of Saturday work would continue. The parties later negotiated that Mr S would have Saturdays off work but on reduced salary.
The second incident occurred when pallets of fresh produce were left outside the supermarket. Mr S claims he arranged another employee to deal with this, but on being called by a staff member to say that the pallets were still outside, Mr S refused to return to work to deal with the pallets.
The suspension
Mr S and his employer had a meeting but Mr S was not told that it was a disciplinary meeting, that it could result in suspension, or that his employment was at risk. After the meeting, Mr S was suspended indefinitely so that the employer could “cool down” and investigate the pallet incident further. Mr S was not paid during his suspension.
The Court found that his suspension was unjustifiable. The Court made the following comments:
1) To justify suspension, an employer must have good reason to believe that the employee’s continued presence in the workplace will or may give rise to some other significant issue. The fact that an employer may have reason to suspect that an employee has engaged in misconduct, or even serious misconduct, does not of itself justify suspension while those concerns are investigated.
2) A decision to suspend an employee will normally only be justifiable if it is made as a result of a fair process. The minimum requirement for a fair process is that the employee be told that suspension is being considered and the reasons why, and then given a proper opportunity to be heard on that issue before a decision is made.
3) In the absence of express agreement to suspension without pay, either in an employment agreement or by mutual agreement, suspension without pay will normally not be justifiable.
The dismissal
The employer met with the other employee, who denied an arrangement was made for him to deal with the pallets. The employer then made a decision to dismiss Mr S. At the meeting, Mr S was told that “after considering all alternatives and the various disciplinary actions available plus consideration to his continual past abuse of Company Business rules and Employment Contract, the company had no alternative but to terminate his employment accordingly”. A letter of explanation to Mr S stated that Mr S had previously not complied with the rules and his employment contract, and that he had received numerous warnings regarding molestation of female staff, breach of contract and punctuality issues.
The Court held that the key test for dismissal was whether the decision was one which a reasonable and fair employer could have made. Firstly, Mr S’s conduct needed to be capable of being regarded as serious misconduct. Secondly, the employer needed to show that a full and fair investigation was carried out.
The Court held that there was no serious misconduct by Mr S. Four allegations of sexual harassment, punctuality, leaving work without permission, and falsifying records were found to be unfounded, and had never been raised as a disciplinary issue with Mr S. While Mr S’s conduct in not taking responsibility for the pallets could be regarded as serious misconduct, a full and fair investigation was not made. The Court held:
1) An investigation into misconduct should include a full disclosure to the employee of the relevant information
2) Always give the employee advance notice of a disciplinary meeting
3) The employee should be told that the meeting is a disciplinary meeting that could result in discipline or dismissal
4) The employee must be given an opportunity to seek advice or representation
5) The employee must be given an opportunity to respond before the employer drew any conclusions
In this case, because a full and fair investigation was not completed, and the meeting was deficient, the dismissal was held unjustified.
This decision raises all of the necessary issues that employers should consider when a misconduct issue arises with an employee. If in doubt, contact an employment advisor or solicitor for advice. We also recommend that you keep clear and accurate records of all events and discussions that occur for future reference.
is a staff solicitor in our commercial law team. She also does some employment law work for clients. Contact her by clicking here.
