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When workplace conduct crosses the line ...

25 October 2016


Inappropriate behaviour in the workplace is an inherently sensitive subject and has the ability to profoundly affect a business’ reputation. As such it is important for employers to know how to deal with unacceptable behaviour and for employees to know what is not fitting workplace decorum and the consequences they are likely to face.  

The Employment Relations Authority has released a fascinating decision regarding a Senior Commercial Manager at ASB who displayed highly inappropriate behaviour and claimed his resulting dismissal was unjustified.

Mr Nel had worked at ASB for 18 years and had been a consistently high performer. However, from late 2015 the married man began making inappropriate comments to one of his direct reports, calling her ‘sweetheart’, commenting on her appearance, saying she was “just so f**ing hot”, emailing her while intoxicated, and asking her if she was joining ‘Tinder’. The woman did not encourage his behaviour.

In the late evening of Friday 4 September 2015, Mr Nel sent the woman a Facebook message, addressing her with “Hey Sxy” and saying “I’m head over heels for you and have been since the first time I saw you. I’m an old fart who loves you…”. He then added “Oh f**k, this is just crazy but need to get it off my chest as its been killing me! Sorry for spilling my guts! I know you don’t care but at least I can move on now.”

The woman replied the next day saying “I think you are a great boss and have been very supportive of me at work and I see you as a good friend, nothing more. I hope this does not affect our working relationship …” She added “I would also appreciate not being called inappropriate names at work or elsewhere as it undermines me and make[s] people think that I may have only got my job based on how I look and not based on my actual ability. I have worked very hard to get to where I am today both personally and professionally.” She finally ask him not to raise this topic again as it made her uncomfortable.

Mr Nel promised his feelings would not affect their working relationship and apologised for what he had said. However, when the woman arrived at work on Monday, Mr Nel had moved desks to sit next to her, saying they needed to work more closely together. Two weeks later Mr Nel encouraged her to apply for a vacant position at ASB which she considered far beyond her experience and skills, and she felt uncomfortable about his motivation. Mr Nel also continued to refer to the earlier Facebook messages. The woman raised the issue with Mr Nel’s boss, the Commercial Relationship Manager, and was referred to a ‘People and Culture Consultant’ for ASB, Mr Vallabh.

Upon Mr Nel’s request the woman met with him at work to try and resolve the matter. However, when she asked to move back to his previous desk rather than sit next to her, he flippantly referred to it as “returning to [his] naughty corner”. As the woman was not ready to make a formal complaint, Mr Vallabh ran an IT investigation which provided much of Mr Nel’s inappropriate email correspondence. Mr Vallabh was also contacted by three other employees who were unhappy with Mr Nel’s behaviour towards them.
Certainly Mr Nel’s behaviour is unacceptable in the workplace by anyone’s standards, so how is it that the Authority found his resulting dismissal to be unjustified?

ASB followed a good disciplinary process, discussing the issues informally with Mr Nel before commencing a formal disciplinary process, and encouraging him to utilise employee assistance services before meetings. Mr Nel’s regional manager investigated and found that Mr Nel had acted inappropriately and there was no longer trust and confidence in Mr Nel as a senior manager. The regional manager decided that in light of ASB’s values, the appropriate outcome was to dismiss Mr Nel.

The Employment Relations Authority did not find that ASB breached its duty of good faith when dealing with Mr Nel or treated him differently to other employees in similar situations. However, the Authority had to consider whether Mr Nel’s dismissal was appropriate in “…all the circumstances at the time the dismissal or action occurred”, and it was the consideration of this context that proved problematic for ASB. Mr Nel had 18 years of service with the bank and was a high performer with no history of disciplinary actions and was never negligent in his duties. He apologised immediately after it became clear his feelings were not reciprocated and took responsibility for his actions, saying that the fault lay with him. Because of this context, the dismissal was unjustified.

The bank was liable for $95,455.68 in lost wages and $15,000 for hurt and humiliation. However, because Mr Nel was also blameworthy and was the author of his own misfortune, the remedies were reduced by 90%, meaning that he only received $11,000 from the bank.
 
The finding of unjustified dismissal might seem unfair to many, but it is vitally important that employers consider the full context when deciding to dismiss. It would be unjust for an employee with 18 years’ service and a good record up until this point to be dismissed over one mistake, which from his point of view, he took full responsibility and apologised for immediately. That said, his actions are deplorable and the Authority achieves overall justice by the drastic reduction of his monetary award.

Employers reading this article can note several things which will place them in the best position possible should a similar situation arise. While it might sound like common sense, it is extremely important that you have a robust policy regarding the behaviour you expect from your employees, and that employees are familiar with this policy. The policy should also state whether deviation from the acceptable standard of behaviour might constitute serious misconduct, the process that will be followed if allegations are made, and the possible consequences such as dismissal.

Employers should also have a mechanism in place by which employees can report inappropriate behaviour they experience or witness in the workplace. Employees should know who they would report to, and who the alternative is, if for some reason the usual person is involved in the behaviour. If reports of misconduct are received, they should be taken seriously and adequately investigated.

Finally, if you ever need to decide whether behaviour justifies dismissing an employee, remember the Court or Authority will consider “…all the circumstances at the time the dismissal or action occurred”, including the wider context. Behaviour that cannot justify dismissing an employee of 18 years with no previous incongruences who accepts responsibility, may well justify the dismissal of an employee of 2 years with previous warnings who has never owned up to their wrongdoing.

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

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