News Article

latest news in employment law


Published 01 May 2010

Lateness is one of those perennial bug bears that cause a great deal of upset. Employers often struggle with the unfair way employees act.

So, how much is too much? What are the rules?

One of the central considerations is IMPACT. What is the impact of the lateness on the business?

Each situation needs separate assessment because there is a world of difference between lateness which has a negligible impact on a business and one where substantial losses flow.

If an employee is late, but there is not much impact on the business then the employer may have to tolerate repeated disruption, issue warnings and finally dismiss if it can be said the lateness is persistent. Dismissals for persistent lateness have bee upheld by the Courts.

But what happens if an employee doesn't show up for work at all because they are too drunk? Perhaps they also come to work two hours late 3 days later. Maybe they are ½ an hour late?

Consider a dairy farm as an example. A $5M business, with a $1.5M shed with 900 cows, and $7,000 earned on each milking. In this type of business being ½ hour late may be critical, the tanker may not be prepared to wait. Time is needed to separate the cows receiving antibiotic treatment from those that do not need medicine. A contract milker may lose hundreds of dollars, whilst a relief milker may lose $50. Here the impact of lateness, even ½ an hour may be significant.

In other industries open up the shop for the first customers is also critical, for late opening means lost customer earnings. Again ½ hour may be serious.

So….. assessing the IMPACT on the business is one of the essential facts to consider when making a decision on how to handle lateness. Other factors include, performance record, and most importantly what was the reason for the lateness. Holding a meeting to hear the reasons for lateness is always required.

Some cases of note:

New Zealand Employment Relations Authority
Marija Urlich
AA 163/09 5127159
4 December 2008, 22 May 2009

"Mr Telfer, who I have found was acting as CDT's representative, dismissed them without making any inquiry as to the reasons why they were ½ an hour to 1 hour late for work on the morning of 5 June; he did not know why they were late to work, so CDT cannot show that the decision was fair or reasonable. In addition, it is unlikely lateness of such limited degree could justify dismissal in the harsh terms meted out to Ms Wright, Ms Graham and Mr Hutton. While I appreciate farm management involves important issues of animal welfare, there was no clear evidence that the late start on 5 June endangered any animals or significantly hampered farm production. For these reasons I find Ms Wright, Ms Graham and Mr Hutton's dismissal were unjustified."

New Zealand Employment Relations Authority
Robin Arthur
AA 255/09 5138988
17 February, 5 March, 30 July 2009

On 27 June Mr Mercer, accompanied by his representative, attended a disciplinary meeting to respond to four allegations regarding lateness or absence at work. His responses were:
  • (i) he was late to work by 30 minutes on 26 May 2008 because he was delayed by an accident on the motorway; and
  • (ii) he was late to work by 1 hour and 45 minutes on 27 May 2008 because he made a mistake reading his roster; and
  • (iii) he called in sick only a few minutes before his shift was due to start on 13 June 2008 because he had a "guts ache" and had been unsure earlier that morning whether he might be well enough to get to work; and
  • (iv) he was not late to work by 15 minutes on 16 June 2008, and later produced a car park receipt showing he was there earlier than MTS managers believed.
What the judge (the Authority member) decided:

"Lateness incidents sufficiently serious to warrant dismissal

[31] The record of settlement reached in December 2007 required Mr Mercer to advise either Mr Shazell or Ms Torrance at least one hour before his start time if he was going to be absent or late that day. His agreed performance review form included the following expectation on timekeeping:

No examples of lateness and provide [Ms Torrance] or [Mr Shazell] with communication in advance if lateness is going to occur. Arrive 15 minutes before shift to prep for the day

[32] A further agreed term was that there be “no further incidences of misconduct as set out in the code of conduct and your employment agreement”. That code included the following example of misconduct: “Unauthorised absence from duty without proper notice and without sufficient explanation.”

[33] Mr Mercer asserts the specific incidents of lateness identified by MTS as justifying its decision to dismiss him were isolated and explicable incidents. However I find that MTS was justified, after considering Mr Mercer's explanations, in reaching the decision to dismiss him in the circumstances — specifically that he was on a final written warning and had breached the performance expectations arising from settlement agreement reached in mediation.

[34] The evidence of Mr Spooner and Mr Williams suggested some disparity of treatment between staff. They spoke of some incidents of lateness by other staff (including themselves) not attracting such severe consequences. However I find this did not amount to an unjustified disparity. None of the examples they gave related to an employee on a final written warning and working under a performance review programme. MTS was entitled to hold Mr Mercer to the standards agreed in the earlier mediated settlement.

[35] I have concluded that Mr Shazell's decision to dismiss Mr Mercer, made after a disciplinary inquiry focussing on four specific incidents, was one that a fair and reasonable employer would have reached in all the circumstances at the time. My conclusion relies on the following findings about those four incidents.
(i) 26 May 2008 (delay by motorway accident)

[36] Mr Shazell accepted Mr Mercer's explanation on this particular incident of lateness. He accepted that the delay was from a factor beyond Mr Mercer's control and that Mr Mercer had promptly phoned in to work to advise of the delay. It was, properly, not relied on as justifying his dismissal.
(ii) 27 May 2008 (mistake reading roster)

[37] Mr Mercer said he had misread the roster for that day — believing he was due to start later to work on a different programme — because he was tired from working on the seventh straight day in a ten-day roster. While at first blush this seems a situation created by MTS's work demands, it emerged in evidence that Mr Mercer was working that roster because it was necessary to accommodate a request he had made for certain days of leave. The responsibility to correctly identify his times and days of work remained his and I accept Mr Shazell was not unreasonable in rejecting Mr Mercer's explanation.
(iii) 13 June 2008 (late sick call) [38] Mr Mercer says that he delayed calling in sick on this day — leaving a voice mail message at 7.56 am when he was due to start work at 8.15 am — because he had thought until that point that he might have been able to make it to work.

[39] He says he was suffering vomiting and diarrhoea, probably from food that he had eaten at an album launch party he attended the previous night and at which he was helping with technical requirements.

[40] I accept Mr Shazell was entitled to come to the conclusion that he did not believe or accept Mr Mercer's explanation. As Mr Shazell said in his evidence, “it looked dodgy” that Mr Mercer claimed to be sick after being out so late. Mr Mercer confirmed that he had not returned home until after 2 am that morning when he was due to be at work by 8.15 am. In any event the time of his telephone call was well outside the required standard of at least one hour before. I note too that Mr Mercer's home was around one hour's drive (in Auckland morning traffic) away from the MTS workplace. He would have had to make the decision about trying to get to work on time by around 7.15 am — and he did not actually call until just before 8 am.
(iv) 16 June 2008 (disputed lateness)

[41] Mr Mercer denies he arrived late to work on this day. He says he arrived at a nearby carpark building around 8.50 am in time for his 9 am start. He then walked to the MTS offices with two women who were also visiting the premises and entered the building at the same time as them. He then went to the studio where he was due to work and “peeked in” seeing a colleague who was at work there and then went elsewhere in the building.

[42] He criticises MTS for relying on the evidence of Ms Arago-Kemp that she had walked into the building behind him that day and had noted the time as being 9.15 am. He says MTS should also have checked his time of arrival with the two women with whom he had walked into the building.

[43] Mr Shazell was entitled to rely on Ms Arago-Kemp's information about the time that she arrived at work and when she saw Mr Mercer. She was due to be involved in a performance review meeting with Mr Mercer that very day and had the issues around his punctuality in mind. Her evidence around times on that day is supported by an email she sent from her office at 9.21 am — after having taken the lift from the reception area and checked Mr Mercer's roster — some six minutes after she says she arrived at work. It reads: “I have just arrived at work, 5 minutes ago at 9.15 am this morning. David was walking in with me.”

[44] This conclusion is also supported by the evidence of Mr Richards, given for the first time at the Authority's investigation meeting and not told to Mr Shazell before Mr Mercer's dismissal. Mr Richards said he had checked the studio at 9 am and Mr Mercer was not there as scheduled. Mr Richards had left the other camera operator there and went to send a text to Mr Mercer before going “out the back” of the premises to have a cigarette. Mr Mercer joined him there around 10 minutes later.”

Employment Relations Authority, Auckland Office
Vicki Campbell
AA178/06, AEA28/06
16 , 19 May 2006

Mr Paterson was late for work. Although I have been unable to ascertain the extent of Mr Paterson's lateness with any certainty, I am satisfied that is more likely than not he was at least 45 minutes late. Mr Paterson told me his usual start time was 7.30 am but that by the time he and Mr Mankelow had gone to PBT and then past his house they arrived at work at about 8.15 or 8.30 am. Mr Debenham says it was much later than that but was unable to put a time on it.

[29] Mr Paterson's lateness to work followed closely on the heels of the previous two incidents and this contributed significantly to Mr Debenham's decision to dismiss him. I am satisfied that Mr Paterson must take some responsibility for the situation which developed in his employment relationship with Mr Debenham.

[30] I am satisfied that it is just to reduce the remedies available as a result of Mr Paterson's conduct by 20%.

The Court has also set out the minimum requirements of procedural fairness to be applied by an employer in an investigation into serious misconduct: Paterson must take some responsibility for the situation which developed in his employment relationship with Mr Debenham.
  • notice to the employee of the specific allegation of misconduct and of the likely consequence if the allegation is established;
  • a real as opposed to a nominal opportunity for the employee to attempt to refute the allegation or explain or mitigate his or her conduct; and
  • an unbiased consideration of the employee's explanation, free from predetermination and uninfluenced by irrelevant considerations.
(NZ (with exceptions) Food Processing etc IUOW v Unilever NZ [1990] 1 NZILR 35).

[24] Mr Debenham accepted at the investigation meeting that he did not follow the required procedure when dismissing Mr Paterson.

[25] The decision to dismiss was based on Mr Debanham's misapprehension that he had previously warned Mr Paterson that he could be dismissed for future problems. I am not satisfied he did that. Standing back and looking at the employment relationship problem objectively, I am satisfied that Mr Paterson has been unjustifiably dismissed and remedies are available to him.

If you are wondering about the minimum requirements we have just quoted, please note there may be times when these requirements may not be needed but it's a rare day when that happens.