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 Show respect and follow rules when firing

The Dominion Post - 6 November 2012

Readers would have been surprised by the front page story in the Dominion Post a week ago. Cazna Waaka was a bus driver for City Line NZ Limited, trading as Valley Flyer. At a Hearing before the Employment Relations Authority, Ms Waaka said that she told her Regional Operations Manager during an altercation that she had with her that she was “a f.... bitch” and, further as the altercation proceeded, that “you can stick your job up you f.... ar....”. More than enough by way of insulting comments to lead to Ms Waaka’s dismissal readers might think.

Yet, the Employment Relations Authority ended up awarding Ms Waaka $10,000. How could that be?

The reasons why provide some good lessons for employers.

Prior to the incident, Ms Waaka had learnt that a member of her whanau had passed away that morning. As she drove her Valley Flyer bus toward the Waterloo depot she resolved to advise management that she would be taking that afternoon and the following two days off to attend the tangi. She picked her two children up on the way as their father was unable to look after them. They were part of her responsibility.

She stopped at the Waterloo depot and went to the office. She left her children on the bus, arguably with the engine running.

This, according to the Regional Operations Manager, who arrived at the depot shortly afterward, led her to speak to Ms Waaka about two children being left unattended on the bus with the engine running.

The two women argued about whose responsibility it was to care for the children and eventually the conversation resulted in Ms Waaka using the offending words towards her supervisor.

The difficulty for the company was that it wrote a letter of dismissal saying that Ms Waaka was guilty of gross misconduct and that the company had decided to summarily dismiss her from her employment with it.

Ordinarily, the employer could have justified Ms Waaka’s dismissal by arguing that she breached the duties of trust and confidence which are inherent in the employment relationship. The employer could argue that a fair and reasonable employer could dismiss Ms Waaka upon this basis.

However, the employer gave her no hearing. It had a disciplinary process as part of its collective employment agreement which was relevant in this situation. It did not follow it. Apart from that the comments made by Ms Waaka were made in the heat of the moment and against the backdrop of her recently learning about the death of a whanau member. In addition she had 13 years of good service to the company. The employer argued that Ms Waaka had repudiated her contract by her conduct and that it didn’t have to follow process.

This was rejected by the Authority who said that the employer had an obligation to seek an explanation from the worker prior to reaching any conclusion as to whether repudiation of a contract had occurred. It had an obligation to carry out an inquiry before forming a view as to whose versions of events was correct given that there was a difference of opinion as to what occurred between the two ladies. As far as any dismissal is concerned the employer failed to carry out its obligations to provide Ms Waaka with a hearing and any such dismissal was accordingly unjustified. She was not reinstated because that would have been impracticable. She was not granted lost income because she hadn’t carried out her obligation to look for other work.

However, she was awarded compensation for humiliation and distress caused by the unjustified dismissal of $8,000 reduced by 50% because of her contribution for what had occurred. She was given a further payment of $6,000 for being unjustifiably disadvantaged by the company not following the procedure relating to dismissals that was in its collective employment agreement.

Oddly, the remedies appear to duplicate each other.

Waaka is not the first employee to use colourful language towards an employer and later receive an award.

In 2011, Mark Allen, a fork lift driver for C3 Limited, a Mount Manganui based company, told his manager to “get f....” and made an obscene gesture in his direction.

C3 decided that Mr Allen’s actions warranted serious misconduct and dismissed him from his employment. The Employment Court found that Mr Allen’s dismissal was procedurally and substantively unjustified, because the employer placed too much weighting upon Mr Allen’s initial lack of an apology and disregarded his 15 years of near-exemplary service to the company.

Yes, what Ms Waaka did was completely over the top and may well have resulted in a justified dismissal if a proper hearing had occurred in which Cazna Waaka had been given a proper opportunity to explain her side of the case, the impact upon her of the death of a member of her whanau and had all other relevant circumstances properly been considered.

As always, show your employees respect in all elements of your relationship including its termination.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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