Chris Grenfell: A kitchen nightmare?

Chris Grenfell

A recent headline read "Chef sacked for allegedly offering P dismissed unjustifiably, ERA rules".

The casual observer of such a headline would be horrified to think that an employer can't justifiably dismiss an employee who is offering a side of methamphetamine with the soup du jour.

And it is common to see media reports of significant awards being made to employees who have been unjustifiably dismissed.

Often the publicised amounts are in the tens of thousands of dollars. This can make employers swallow nervously and look at their staff as potential time bombs. The reality is, when an employer acts reasonably, even if not perfectly, the risk of a significant award is relatively low.

The most common employee complaint that ends up in 'Court' is when an employee is dismissed. As dismissal can leave an employee without an income and suffering significant harm to their feelings, it sometimes needs to resolved by an external party such as a Judge or Employment Relations Authority Member.

When a dismissal ends up in Court two aspects will be looked at:

1. The substantive justification for the dismissal; and
2. The procedural aspects of the dismissal.

The basic idea is that an employer must act reasonably, fairly and in good faith when taking action against an employee. Over time there have been some basic 'rules' about how to deal with an allegation of wrongdoing against an employee.

The key rules around the procedural aspects are:

1. Follow any process set out in the employment agreement;
2. Tell the employee what it is they are accused of and give them a copy of any information relied upon;
3. Give them a real opportunity to respond to the allegation;
4. Let the employee have a support person in any meetings about the allegation;
5. Let the employee know what could result if the employer decides the allegation is proven (is it a warning-type offence or a dismissal-type offence?);
6. Consider the information received from the process with an open mind and don't make any decision until all the relevant information has been obtained; and
7. Let the employee comment on the proposed outcome before making a final decision.

Provided the above aspects are complied with there is a very good chance that a resulting dismissal will be 'procedurally' correct.

However, if an employer misses one or more of those steps then they are at risk of being found to have not acted reasonably and therefore the decision to dismiss could be found to be unjustified.

Equally the substantive reason for the dismissal has to be reasonable.

For example dismissing an employee for accidentally slightly overcharging a customer on a single occasion would probably not be what a fair and reasonable employer would do and therefore it would not be a justifiable decision.

Coming back to our case of the chef that was dismissed for allegedly offering drugs in the work place, the outcome here was that the Authority Member found that the dismissal was procedurally unjustified as the employee wasn't given an opportunity to respond to the allegation.

This is often what is referred to as a lack of 'natural justice'. Accordingly, as the dismissal process was not correctly followed the dismissal itself was not justified.

At this point the Authority Member could have awarded the sacked employer their job back and/or compensation for lost wages and/or compensation for the stress they had suffered.

However, the Authority Member found that on the balance of probabilities the employee did offer drugs and in that case such an extreme breach of their employment obligations disentitled the employee to any compensation.

Of course going through the Employment Relations Authority investigation would have been stressful for the employer and had they followed the above seven 'rules' it is possible that a grievance would not have been raised in the first place.

Like with any employment issue, taking early professional advice can be a good investment.

In addition to your usual professional adviser you can always get free advice from Employment NZ on 0800 20 90 20.