News Article

latest news in employment law


Published 01 May 2010

Court Rulings Support The Employer
On the 'Good News' front there is case law suggesting that in those instances where an employee is 'caught with his hands in the till' and where a faulty dismissal procedure has been followed by the employer – then the employer just might be (and has been) listened to even after following the faulty procedure.

Please Read This With Caution
While the following might give rise to a happy quickening of the employer's heartbeat and a resultant increased pulse-rate, we need to ensure the information is not treated as the lifeline it may appear because the benefits of the situation will not fit very many situations. The criteria are black & white and the cases need to be crystal clear.

Having established the need for caution, the dismissal cases referred to suggest that the court has recognised and, more importantly, 'acted' in a manner that gives rise to serious consideration of justice quite in line with NZ employer's thoughts and opinions.

Employers Thoughts
We often hear from our clients asking “How come the employee has stolen from me, taken time off unauthorised, abused me, caused huge stress, wasted copious amounts of time and now I have to pay the blighter (not a true term) $15,000, two months lost wages and $1200 towards his legal costs?” Inevitably the reason is because the employer failed to follow a correct (in the eyes of the courts) and fair and legal procedure.

This total focus on procedure - regardless of the activities or established and proven serious misconduct of the employee - often results in the employer losing in the ERA. A classic example is where the employee refused to work, a letter given to the employee stated “your employment is in jeopardy' and the ruling was the employee had not been warned that he could be dismissed. Most employers will find this kind of focus on procedure distressing and complete nonsense.

A Quick Explanation
Awards to employees can include: Hurt & Humiliation” – “Loss of Wages' – “Fees” and the like.

In those cases where it has been found the employer has followed an illegal or incorrect (and therefore an ''unfair' procedure) or if you like – the employer “failed to meet the procedural standards” the Member of the ERA (the Judge) is then bound by law to determine the employee's 'contribution' to the dismissal. Usually, awards are decided on and then they are reduced by a percentage which is set by the Member after taking into account the 'employee's contribution'.

In the result the employer might lose the case but have the award reduced by 10, 50 or 60% - or a figure up to 100%. In theory that can happen. And it has happened.

The Caution
While a Criminal Court makes determinations based on 'Beyond Reasonable Doubt” and employment matters are decided based on “A Balance of Probabilities” any future employment cases relying on these decisions might need to prove justification through ”beyond reasonable doubt” evidence to succeed. Each case will be judged on its own merits.

Cases Referred To
In summary - and this is an opinion - Chief Justice Colgan has found that where the employee's guilt is clearly established, and where the result of the employer's investigation and procedures would inevitably have been a dismissal, had correct and proper procedures been followed (and in this case were not fully followed) there is no case to answer- march out. The employer won. The 'hands in the till' but incorrect procedure scenario sometimes presents a case for employers to argue. This is important but does not mean that all Members and Judges will embrace this properly as case law because of the variables in each case (i.e. how many and how important were the deviations from ideal procedure for this type of case) and the misapplication of rules by some judges.

Chief Executive of UNITEC Institute of Technology v Henderson
Employment Court Auckland
12, 13, 14 June 2006: 19 March 2007
Chief Judge G.L. Colgan
AC 12/07; ARC 92/05)

Always follow EAL's guide and do more procedure rather than less.
For more information on the cases

If you need assistance with correct disciplinary & dismissal processes see our How to Dismiss Staff ebook and software.

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