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Dismissed after snoring: A reminder casual employees deserve respect

Like all relationships, entering into an employment relationship can be messy and expensive. Tempers can flare, parties can say things they may not mean, and in a short space of time, it can all be over.

Sleeping in the car

A recent Employment Court case could not demonstrate that better after an employee’s weekend sojourn went bitterly wrong. In this case the employee (and soon to be grievant) was asked to go on a weekend trip to help with the promotion of the company’s products at an event. Joining him was the employee’s manager and another colleague.

The company had planned for the grievant to share a room with his colleague. Unfortunately for both, it appears that the grievant was a snorer and his colleague did not take kindly to this. The end result was that the grievant left the motel room during the night, complained to the police about an altercation and slept the remainder of the night in the company car.

The next morning the grievant sent a message to his manager saying his workmate threatened to kill him the previous night if he snored, and that he had to call police. He advised that he wanted nothing more to do with his workmate, was not able to work that day and did not want to pick up his workmate.

When the parties eventually made their way to the event, the grievant was told by his manager he should rest in the car.

Following the event, the original plan was for the grievant to return by car with his colleague. However, still uncomfortable with his colleague, the grievant opted instead to go by bus.

While waiting for the bus the grievant says he was rung by his manager who showed little interest in his plight, made no attempt to stop him leaving, but instructed him to return his work shirts.

The grievant later received a text message from the manager inquiring about a broken mirror in the motel room and saying the grievant had let him down badly. A series of texts were exchanged on the matter.

The next day the grievant was told by text to drop off his company shirts and to pick up his car from the company premises. To conclude matters, the manager sent the grievant an email advising that the manager would not be continuing with job role offers of (casual) employment in the future.

No mention of dismissal was made. No declarations of being fired were made. So was the grievant dismissed?

There are a couple of things to consider. The grievant was a casual worker. Not calling a casual employee in for another engagement is not normally a dismissal. However, casual employees can be dismissed if they are actually carrying out work when there is a parting of the ways.

It is also worth considering that to defend the claim, the employer argued among other things that the employee abandoned their employment.

The company said the instruction to return the work shirts was not a dismissal. However, the Employment Court found that given the grievant was part way through a period of casual employment, and he was required to wear the company shirt on assignments, the instruction to return his shirts was indeed a dismissal.

Clearly the dismissal was procedurally unjustified because there was no proper investigation of the company concerns and, significantly, the worker had not been given a reasonable opportunity to respond before a decision was made.

The further argument that the worker had abandoned his employment by leaving the show without working did not find favour with the court. The court held that reaching such a conclusion required a proper enquiry first and that did not happen here.

In this case the failure to consult was not trivial, it was significant, and the result was that the worker was treated unfairly.

A lesson from this case is surely that casual employees must be treated with respect. An employer in a case like this must treat both their workers with understanding and consideration. It was certainly a highly emotional situation that occurred in the motel.

Here the employer seemed to show little respect for the grievant and legally they were caught out because they did carry out a dismissal and there was no fair process. From the point of view of human decency, this outcome will hopefully appeal to employers’ sense of fair treatment.

Companies in crisis - how to size up a personal grievance

We remain in uncertain times. The end of the wage subsidy is looming, and the ever-present concern of a Covid-19 flareup continues to hang over many employers’ heads.  

crisis covid 19 economy2In these circumstances we are likely to see another wave of redundancies and organisational change. Unavoidably, some workers will raise personal grievances.

So how can you respond to such personal grievances in a smart way, reduce the personal and time impact on the business and protect the bottom line? 

Understand the problem

Understanding what the problem is the first step towards understanding the solution.  Take a moment to understand what is actually being complained about. Is it the consultation process?  Are they opposed to the reason for the restructure or that they did not receive sufficient information? Perhaps the employee is unhappy with the absence of a contestable selection criteria. 

Once you have identified the claim itemise the issues raised, and identify what your position is on each issue.  You will need to consider whether there are weaknesses and how you might address those weaknesses.  Be aware of health and safety issues that need to be dealt with immediately.

This is also the best time to consider obtaining legal advice.

Understand the person

Always bear in mind there is a person behind the personal grievance. Consider why they are raising the personal grievance.  Do they want to keep their job or are they positioning themselves for an agreed exit?  Do they even have an objective beyond being unhappy with the situation?  Think about the perspective of the worker – could they be feeling like they are being singled out, or punished for unrelated issues that occurred during their employment?

Also consider the person’s personal situation – are they worried about financial commitments, or are they worried about finding another job?

Finally, look at the person raising the grievance from an objective perspective and think about how reasonable they are likely to be. Then consider the extent to which you will be able to engage with them to settle matters, or the extent to which they will be litigious.  

The answers to these questions will inform the best approach when communicating with the employee and how to achieve resolution.

Identify who will deal with it

Resolving grievances can be time consuming and stressful. It is important that the person (or persons) dealing with the grievance is equipped and experienced to handle the contentious work that comes with the territory.  That person should be supported and have delegated authority to make decisions.  You will need to consider to what extent that person is complained of by the employee.

The person leading this work should understand the situation.  Make sure they have access  to a timeline of events and all the available information. In many cases the person leading this work will be able to construct the timeline themselves.  This is an important exercise to ensure they understand the background and context of the grievance raised and to assess to what extent the employee’s grievance has substance.

Identify your options

Typically, there are three main approaches to responding to a grievance:

  • Stay the course – set out your position and let them decide their next step. Either it will go away, or they will litigate and you follow through and defend it.
  • Move towards settlement – set out your position but leave the door open to settlement either by suggesting mediation or communication with the employee or their representative. This can be effective where there are signals that the employee wants to leave.
  • Consider something out of the box – while there are procedural requirements in employment law, there is nothing stopping you from considering what the employee really wants, and this may be outside of a standard exit settlement. Consider whether there is a different area of work that the employee expressed interest in that they could be redeployed to. You may be able to source employment with another employer. Or perhaps there is a potential for contract work or a change to part time work which is exactly what the employee is looking for. 

Resolving a grievance does not have to be a positional battle – consider your interests and the interests of the employee and see if there is a solution that suits both.   No matter which approach you take, there are always opportunities to discuss a resolution or settlement.

Get advice when you need it

Once you choose your pathway you can consider what strategies to adopt in moving towards your preferred solution. 

If you are unsure about an approach, it is often more cost effective to get advice about the approach before you take it, rather than having to get legal assistance after the fact when things go wrong.

Remember your other obligations

When dealing with a grievance it’s important not to lose sight of your other general obligations.

You have privacy obligations to an employee, even when they raise a grievance. Be careful what you tell others about the situation.  This includes being careful about what you say in emails and notes about the employee, as these may fall within the scope of a privacy request.

You also have a duty to ensure the health and safety of an employee so far as is reasonably practicable. Ensure you offer support to the employee, such as EAP. Further, if the grievance raises health and safety issues, make sure you take that seriously and follow any health and safety policies you may have in place.

Coronavirus: The cost of lying about getting sick with Covid-19

Pulling a sickie isn’t a new phenomenon. But it can create a whole host of additional issues in a post Covid-19 world.

Port of Tauranga Covid ClaimIn the midst of New Zealand’s “second wave” of Covid-19, the media recently reported on a worker at the Port of Tauranga who claimed to have Covid-19, when he did not.

The claim was quickly identified as a hoax and there were reportedly no interruptions to the port as a result of the claim. Port of Tauranga Limited has stated that the worker was an employee of a contractor, and that it would be dealt with by the contractor because they were the employer.

No further details of the incident have been reported, including why the employee would make such a claim. From the reports, it does not appear to be a case of a false positive or mistake.

Unfortunately, the port worker is not alone with his claims. Numerous media reports from around the world describe instances of employees lying about a Covid-19 diagnosis.

Several months ago an American man was charged by local authorities for defrauding his employer after lying about contracting the disease and using a fake doctors note to evidence his claim.

Atlanta Prosecutors for the case said that as a result of the employee’s lie, the company closed the premises for deep cleaning and quarantined four employees, costing the business over US$100,000.

There were also reports from a different US state of a restaurant that closed for two days after a busboy lied about having Covid-19 to get a day off. The employer referred the matter to the police. Similarly, in Canada, an 18-year-old McDonald’s worker was criminally charged after allegedly using a fake doctors note diagnosing her with Covid-19 in order to get out of work.

In New Zealand, there have been no reports of police prosecutions or other litigation against people wrongly claiming to have Covid-19. So if an employee does tell such a lie, what can their employer do, particularly if they suffer significant loss?

In New Zealand, employees are entitled to five days of sick leave per year to use if they, or a dependent, are sick or injured. Use of this leave wrongly, for other reasons, can justify dismissal.

The Employment Court considered the issue of an employee of a charitable trust who took sick leave for an injured leg and was pictured at a sporting event. When the employer had suspicions that the employee had been dishonest about his sick leave, the employee was not helpful in providing explanations, and was subsequently dismissed.

The Employment Court upheld the dismissal and noted that misuse of sick leave entitlements “may constitute serious misconduct in employment depending on all the relevant circumstances”.

But lying about having Covid-19 has far broader implications than lying about an injury.

If an employee informs their workplace that they have Covid-19, the Ministry of Health advice is that the business isolate spaces where the employee has been and ensure cleaning is undertaken.

Furthermore, close-contact staff should isolate for 14 days, and finally the employer should consider store or site closure. The costs of these measures can be substantial to a business, and disciplining or even dismissing an employee will do little to mitigate these costs.

The Employment Relations Authority has jurisdiction to award damages against an employee for breaches of express or implied terms of their employment, where the employer suffers loss.

There have been a number of cases over the years where an employer successfully obtained damages against an employee for breach of contract. These involve issues like wrongly using the employer’s confidential information, wrongly working for a competitor, and wrongly soliciting clients. The damages awarded in these cases range from thousands of dollars to potentially millions of dollars.