Employers are often exasperated and complain to us that it is impossible to dismiss someone while following all the rules – it’s not!!
On 18 October 2018, Inghams Enterprises (NZ) Pty Ltd (the Employer) dismissed Mr M, a registered electrician with around 13 years’ experience, for serious misconduct after repeated breaches of the Employer’s Health and Safety procedures and Company rules.
Mr M raised a personal grievance for unjustified dismissal.
The Employment Relations Authority rejected the claim and gave credit to the Employer for their disciplinary investigation and HR response in this matter.
What lead to the dismissal
The Employee was on his final warning (at the third step of a three step warning procedure) and had been warned at the second breach that “any further breaches of any nature may lead to dismissal”.
Shortly after the final warning, he was undertaking a repair job. He had personally deemed the job safe but failed to follow the Health and Safety procedures in doing so and missed a mandatory step.
The Employer investigated the matter.
After concluding that the Employee’s actions were serious misconduct, the Employer wrote to the Employee proposing to terminate his employment. The Employer gave him a fair and reasonable opportunity to respond to the proposal. He failed to respond and the Employer dismissed him.
Why the ERA agreed that the dismissal was fair
In the ERA, the Authority found that the Employer had conducted “a thorough and fair investigation” stating that “it was unrushed and well documented”. The Authority also found that “the employer’s actions were extensive, perhaps going beyond what was strictly necessary”.
When dismissing an Employee for serious misconduct, the dismissal must satisfy two tests, firstly that the dismissal was substantively justified (is the reason for dismissal so serious that it warrants dismissal) and secondly that the process the employer followed must be fair.
In this instance, the Employer was substantively justified, the Employee had made repeated breaches of the mandatory rules that put the health and safety of himself and others within the workplace at risk of serious injury. The Employer was also procedurally justified, the Employer had done everything that a fair and reasonable employer could have done at the time.
This case provides a good example to all employers, illustrating the importance to take time to fully consider all options available to them before dismissing someone and shows what is required to meet the “fair and reasonable employer test”.
