Waikato Business News July/August 2017

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WAIKATO BUSINESS NEWS July/August 2017
15
Being open with employee
under suspicion is critical
HR AND THE LAW
> BY ANNE AITKEN
Anne Aitken, HR Professional | Email: anne@anneaitken.co.nz
Hall v Taumarunui Christian Education Trust.
One of the foundations
of our legal system is
the principle of natural
justice which includes the right
of a person to know what they
are accused of and who made
the accusation. It sounds simple,
but often in employment
situations, the close working
relationship between staff can
make them reluctant to speak
up against their colleagues.
This is one such case.
Frances Hall was employed
as a junior supervisor overseeing
the front of house area
for the Taumarunui Christian
Education Trust that provides
hospitality training to youth,
primarily through a training
café. One of Hall’s conditions
of employment was no drugs or
alcohol permitted on the premises
at any time. Breach of this
house rule will result in instant
dismissal.
Just before Christmas the
man who collected the scrap
food arrived and brought some
beer for the team. Hall directed
one of the trainees to pour a
beer into a takeaway coffee cup
and serve it to the man in the
café courtyard. Hall later shared
the beer between the staff. Two
months later, Hall was off
duty when she and her partner
stopped by the café with vodka
and shot glasses. Hall didn’t
take the alcohol into the premises
but two of the students were
given shots by her partner.
Three months later the Trust
chairperson was disciplining a
student for bringing marijuana
onto the site when the student
brought Hall’s offending to the
chairperson’s attention. Hall
was promptly suspended on pay
while a process was followed to
look into the allegations.
A meeting was scheduled
for two days later, but Hall refused
to attend and provided a
medical certificate. A further
meeting was scheduled with the
same result and the trust wrote
to Hall advising her of the “preliminary
decision to dismiss”
stating the factors that they had
taken into account including
that students had been involved
and the deliberate manner in
which she had acted to conceal
her actions. She was invited to a
further meeting to provide any
information and a response to
the preliminary decision.
Hall attended the meeting
and was dismissed. She raised
a personal grievance claiming
that both the suspension and the
dismissal were unjustified.
Hall didn’t deny either of the
incidents, although she said her
partner was responsible for the
second incident. The Authority
found that Hall’s behaviour
constituted serious misconduct.
It then had to assess the process
followed by the employer to determine
if the process was what
a fair and reasonable employer
could have done in the circumstances.
With respect to the suspension,
the trust did not give Hall
an opportunity to have any concerns
raised and an opportunity
to be heard before the decision
to suspend was made.
The Authority also concluded
that the Trust was in error in
giving a preliminary decision
when Hall was unwell and had
not been able to respond to the
allegations. A more serious flaw
in their process was the failure
of the trust to provide Hall with
all of the information before it
when making the decision because
the trust had collected
written statements from three
trainees which it had not disclosed
to Hall. Their reason for
not giving her the statements
is because of concerns for the
safety of the staff concerned.
The Authority found that any
safety concerns ought to have
been raised with Hall before the
decision to withhold the statements.
There may have been
a method for providing the information
in a safe way. This
was unfair and was not a minor
defect.
On this basis, the decision
to dismiss was found to be procedurally
unjustified and the
Authority had to consider remedies.
The Authority concluded
that procedural errors do not
result in lost remuneration. Any
actual loss suffered cannot arise
from the decision to dismiss if
it was substantially justified.
Consequently no reward for
lost remuneration is appropriate.
The Authority then considered
the claim for hurt and humiliation
and commented that
the current range for procedurally
flawed processes is $750 to
$4000 and settled in the middle,
but the reduced the figure
by half for Hall’s contribution
to the situation. In the end she
got $1000, which was a far cry
from the three months’ pay and
$15,000 she was seeking.
The critical lessons here are
to give the employee a meaningful
opportunity to comment
before making a decision to
suspend and make sure they are
given all the information that
has been gathered in the investigation.
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