New Zealand: Serious misconduct and the disciplinary process – two significant Employment Court decisions you may have missed

There were two significant Employment Court decisions which you may have missed in the busyness at the end of last year. Both involved serious misconduct where summary dismissal was the sanction. In both cases the dismissals were held to be unjustified and the employees were reinstated to their positions.

These cases give a clear signal from the Court to employers and human resources professionals – serious misconduct investigations and disciplinary processes will be subjected to intense scrutiny.

H v A Limited

In H v A Limited, Mr H was employed as a pilot for A Limited for 8 years. He was summarily dismissed following a finding by the airline of sexual harassment of a young stewardess during a tour of duty. The Court was highly critical of the airline's disciplinary process. The dismissal was held to be unjustifiable and the pilot was reinstated to his position.

The 19 year old stewardess alleged there were three incidents of sexual harassment which took place at the hotel the crew was staying at. She told the other flight attendants about what had happened and made a formal complaint. The airline investigated and went through a disciplinary process.

There were differing versions of events between the stewardess and the pilot. She said that in one instance he sat on her bed, lifted the blanket, touched her leg and made comments like "come on" with sexual intent. He denied this and said he sat on her bed, handed her a blanket and may have accidentally touched her leg while positioning himself on the bed. He also said that it was all just a misunderstanding.

The Court was very critical of the fact that the pilot's version of events was not put to the stewardess for comment. This meant that his explanations were not properly investigated or considered.

The evidence was not reliable and "near enough is not good enough". In other words, when an employee's career is on the line, the evidence needs to stack up. There were also credibility issues and this coloured the evidence which ultimately did not stack up against the pilot.

The Court also found that the pilot had been subjected to a disparity of treatment as unrelated sexual harassment allegations against another pilot of the company had been substantiated and that pilot was given a written warning instead of being dismissed.

The Court acknowledged that there was a serious error of judgment by the pilot but that his dismissal was unjustified.

All of these points are important for employers and HR professionals to keep in mind. More often than not, in cases of serious misconduct, the complainant and/or witnesses will need to be re-interviewed so that the employee in question's version of events or explanation can be put to them for comment. What comes out of those interviews will then need to be provided to the employee in question for comment or response.

In situations where there are multiple allegations or concerns (such as in H v A Ltd where the pilot was alleged to have said a number of sexual comments to the stewardess), a careful analysis of the evidence will need to be carried out to make sure there is enough evidence to support the findings and conclusions.

It will also be relevant if any similar situations have arisen in the workplace and the employees in those cases were treated differently in terms of the disciplinary sanction. It can be reasonable and fair to treat employees differently but there must be justified reasons for doing so – for example, if an employee holds a very senior position then it may be justifiable to hold him or her to a higher standard of behaviour.

Harris v The Warehouse

In Harris v The Warehouse, Ms Harris was employed as a loss security officer at The Warehouse. She was summarily dismissed for behaving in an intimidating and threatening way towards a customer and bringing The Warehouse into disrepute. The Court held that she was unjustifiably dismissed.

The Warehouse had received a complaint from a customer about Ms Harris' behaviour towards the customer's dog being in the store. Ms Harris had asked the customers to remove their dog from the store.

The Warehouse had a policy that dogs were not allowed in the store and, as a loss security officer, Ms Harris was often brought into potential or actual conflict with customers so she was required to be firm, assertive and diplomatic.

Ms Harris also made a comment to other staff that the customers were being arrogant because they would not remove the dog from the store after she had asked them to.

As in H v A Limited, the Court was very critical of The Warehouse's disciplinary investigation and process.

The Court found that there was not enough evidence to support that Ms Harris was intimidating or threatening. The complainant customers were not credible witnesses, the other shop assistants didn't hear anything and the CCTV footage showed that no one else's attention had been drawn to the verbal exchange between Ms Harris and the customers and the customers did not appear upset at the time.

Ms Harris may have been direct, curt and impolite towards the customers but this did not amount to serious misconduct.

The Court also criticised Ms Harris' manager who carried out the disciplinary process as he should have utilised specialist HR/ER support, undertaken better interviewing techniques and taken better contemporaneous notes since it was a serious misconduct allegation.

This point is important for employers and HR professionals to keep in mind. Seeking specialist advice, whether internally or externally, and taking and keeping contemporaneous notes of meetings and interviews are steps which can easily be taken.

These two Employment Court cases show that there is a very high threshold which employers must meet in investigating serious misconduct and taking disciplinary action. A Limited has recently been granted leave by the Court of Appeal to appeal its case. In the meantime, the status quo remains, and it seems that an employer's actions will be under intense scrutiny going forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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