Aug 2014 - Court Case of The Month

Published on: 04 August 2014

Exercising the power to suspend

In a recent case in the Employment Relations Authority an employee who was threatening, used abusive language and yelled and screamed at her employer was found to have been unjustifiably disadvantaged in her employment and to have been unjustifiably dismissed.

The employee, Jane O’Connor was employed by Dry Dock Company Ltd, owners of a café in Tauranga.  Ms O’Connor worked at the café from July 2013.  In September 2013 a new oven was installed.  Unfortunately it overloaded the power circuits blowing the café fuses.  During the week of 11 November 2013 the café suffered power cuts and was unable to serve customers.  On 18 November 2013 there were further power problems.  Around 8am the employer spoke to staff advising that the new oven was not to be used.  Ms O’Connor disputes that this instruction was given. In breach of the direction, Ms O’Connor used the oven for baking.  When the director for the employer discovered the oven was being used, she spoke with Ms O’Connor.  The Authority Member found that during the course of this discussion Ms O’Connor used abusive language.  On 19 November 2013 a meeting between the employer and Ms O’Connor again became hostile and Ms O’Connor left work.  On 20 November 2013 a further dispute occurred.

The Authority determined that Ms O’Connor had screamed and yelled at the employer and had been swearing.  It found that this behavior was threatening.  The employee was advised by letter on 20 November 2013 that she was suspended immediately on full pay while the employer undertook an investigation.  Suspension was permitted under the terms of the employment agreement, which provided that after discussing a proposal of suspension with the employee and considering the employee’s view, the employer may suspend the employee on pay while an investigation into any misconduct is carried out.

The Authority held that a decision to suspend could be reasonable (even without discussing it first with the employee) if it had been made immediately after the 20 November incident, when there was an imminent danger.  By the time the employee was advised at 8pm that night that she was suspended that imminent danger had passed.  In these circumstances a reasonable employer should have provided Ms O’Connor with particulars of the concerns giving rise to the proposal to suspend, the opportunity to comment, and considered her responses prior to the suspension occurring.  That did not occur and the Authority determined that Ms O’Connor was unfairly disadvantaged by the employer’s decision to suspend her.

The termination of employment for serious misconduct was also held to be unjustified.  The Authority found there had been threatening behavior that was not simply a one off event but had been reoccurring over a three day period.  The Authority determined that while the employee had engaged in threatening conduct which could amount to serious misconduct and justify dismissal, the employer’s failure to follow a proper process rendered the dismissal unjustified.  There was a lack of enquiry into and therefore consideration of the employee’s responses.  The defects in procedure were not minor and resulted in unfairness to the employee.

The employee sought lost wages of $6,688.50 together with an award for compensation.  The Authority determined that there was insufficient evidence led by the employee regarding lost remuneration and therefore no award was made.  Had proper evidence been led the employee may well have received an award for lost wages.  The employer was ordered to pay the employee a minimal sum of $1,000 for humiliation and distress.  Given the contributory conduct by the employee