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Employer Wins Case Even Though Dismissal Process Was Flawed

Published 19 Oct 2012

Drader v WINZ 2012

Judge Barry Travis in the Employment Court has ruled the Employee had acted so badly she deserved to be dismissed - even though the dismissal process was flawed.

In this case the Employee, Jane Drader, admitted that she used her position with WINZ to access confidential files contrary to written strict prohibition policy, phoned the (WINZ) client and threatened her.

WINZ followed a disciplinary process and dismissed Ms Draper, but "substantial" procedure failures included the Employer (the managers involved) not taking notes during a disciplinary meeting and failing to supply the Employee with details of the view of an important witness (who claimed she was harassed by the Employee).

The ruling means a win for the Employer in spite of an incorrect procedure being used.


We see this decision in favour of the Employer as a significant one and perhaps signals a step towards a more balanced result even when the Employer has made some process errors. We have argued for considerable time that, when dealing with a situation where there has been serious misconduct by the Employee, an Employer’s minor procedural errors should not influence the outcome.

A word of warning though, where an Employer fails to deliver all the details prior to a disciplinary meeting it could mean the Employee cannot prepare an adequate defence, which would be unfair. The Court is not going to overlook procedural errors which could have resulted in a different outcome for the Employee.

So please ensure you follow the required procedures before dismissing an employee (the meetings etc.,) and do not rely solely on the seriousness of the conduct. Dismissal on the spot is never "OK" - even for more serious misconduct. The Court is required to look at the process in determining whether the dismissal is justified and seriousness is only one part of what is required. 


If you are not members, please consider joining us or buy our How to Dismiss Staff software to ensure you get it right. Members of the Employers Support Package have access to this software.