News Article

latest news in employment law

Procedural Errors In Dismissal Costly For Employer

Published 07 Apr 2013

In a recent decision of Hoff v The Wood Life Care (2007) Limited, Mrs Hoff was awarded over $6,000 in lost wages and compensation.
The Facts:
Mrs Hoff was dismissed following an incident where she hid behind a door in a rest home when she was found with the gardener in a dead resident’s studio.

On the day in question, Mrs Hoff had ended her shift at the rest home and used the master key to give the gardener access to a studio so that he could water plants on the studio balcony which was unoccupied but contained the personal belongings of a former resident. 

The receptionist of the rest home went into the studio to show a family of a prospective resident and found the door was unlocked, the gardener inside with his glasses and Mrs Hoff’s master keys to the premises on the bed. The gardener proceeded to water the plants on the balcony and Mrs Hoff hid behind the bathroom door. A family member noticed Mrs Hoff hiding behind the bathroom door which was partially opened.

That day, the gardener was interviewed and the next day, Mrs Hoff was confronted with these allegations.

A letter of notice of a disciplinary meeting was duly issued stating that “[t]his furtive behaviour was not a good look for our staff as well as highly embarrassing for the staff member showing the Studio.”

The disciplinary meeting was duly held and she said she was stressed in her job after losing her mother and several residents. She was not given a copy of the house rules prior to this meeting. Nor had the gardener been interviewed with a support person prior to this disciplinary meeting. On the day of the incident, the gardener attended a disciplinary meeting but chose to resign instead.

After holding the disciplinary meeting, Mrs Hoff's employment was terminated.

She subsequently raised a personal grievance which was heard by the Employment Relations Authority.

The Employment Relations Authority's Decision:
The Authority found that the failure to interview the gardener prior to dismissing Mrs Hoff was treated as more than a minor procedural breach. In particular the statement obtained from the gardener was deemed short and lacked detail.

The Authority found that the statement “It appears that you used your key to access this Studio when you were not authorised to” was ambiguous and that Mrs Hoff did not know that she was deliberately disobeying an express instruction and this had not been explicitly put to her clearly and unambiguously.

Mrs Hoff was held to be unjustifiably dismissed for procedural reasons.

The Authority ultimately conceded that a fair and reasonable Employer could have concluded that Mrs Hoff was present in the studio for an inappropriate reason and that such conduct could have damaged its reputation or image. The decision to dismiss Mrs Hoff was substantially justified.

As described above, the Authority found the procedural breaches (the failure to give Mrs Hoff the house rules, not interviewing the gardener properly, and the failure to put unambiguous allegations to Mrs Hoff) amounted to an unjustified dismissal.

In terms of remedies, Mrs Hoff was awarded three months ordinary time remuneration and $5,000 for hurt and humiliation. These sums combined were reduced by 50% to come to the figure of $6278.13 because the subsequently discovered conduct that Mrs Hoff and the gardener had become involved in lurid behaviour.

The lesson for Employers is that obtaining evidence from other Employees should be quite detailed; there should always be the giving of house rules/ procedures to those alleged of breaching them and any allegations must be put explicitly to the Employee in order to enable them to respond.

Although the Authority ultimately dismissed the fact that Mrs Hoff was unable to bring up her stress, the decision does highlight the importance of listening and considering such matters in a disciplinary meeting.

It is difficult to follow the Authority’s reasoning that it should have interviewed the gardener after he had resigned as the gardener was no longer an employee and could not be brought before the employer for interviewing.

Perhaps most importantly, the ambiguity found by the Authority in one of the allegations as it “could have more than one meaning” is defeated by its lack of reasoning to explain what these meanings are. The Authority has, it is submitted, created ambiguity where none existed. It is important, therefore, for employers to remember that what appears clear to Employers is not always clear to Employees. This could have been clarified by a copy of the house rules and an explicit statement of the breaches by the employee with reference to these house rules.

When considering disciplinary or dismissal actions ensure you know the rules and process thoroughly. See our eBook Discipline & Dismissal. This eBook is available to download in the Library section of our Employers Toolbox for Support Package members.