Hook v Stream Group NZ Pty Ltd

Much publicity has been given to the good faith provisions of the Employment Relationship Act over the years, mainly with regard to the demands it places on employers. There is, however, a reciprocating responsibility for employees in that they have ‘to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative’. Employees frequently forget their obligations under this clause.

The story of Jarrod Hook and Stream Group is an unremarkable tale of a strained relationship, but it has a tidy example of a process for dealing with an employee who refuses to attend a meeting.

Stream is an Australian based company that bought a New Zealand subsidiary that employed Mr Hook. The styles of management and accountability that were being introduced by the new owners did not suit Hook’s view of how he wished to be managed. Hook was taken to task for his tardiness, being absent from work without notifying his manager and for referring to his managers as “dumb Aussies.” In email correspondence.

Repeated behaviour of this nature inevitably resulted in a disciplinary process and the issuing of a first warning, which stated clearly the expectations required of Hook. A few months later, Hook was absent without notifying his manager and when challenged on his return said he was at the pharmacy getting painkillers. His manager queried why he was wearing a tie to run an errand and Hook admitted he had been for an interview.

A further disciplinary meeting was arranged and the date extended to allow Hook’s support person to attend. No decision was made at this meeting with the intention of having a follow up meeting to discuss the outcome. This is when things got difficult. Hook advised he was sick and then that his support person couldn’t come on the arranged date. Eventually the employer set a date and advised the meeting would go ahead on that date whether or not he chose to attend. Hook didn’t go to the meeting.

Following the meeting the manager wrote to Hook ‘advising that after consideration the proposal was to issue him with a final written warning. He advised that [the letter was] unsigned at this point and is not yet official. The employer said ‘we would like to give you time to consider the proposed letter and give you the opportunity to discuss [it] with a support person or representative. Please respond with any feedback in writing by 5pm on Monday 15^th August’.

Hook did not respond and the warning was confirmed in writing the day after the deadline for feedback. A few days later Hook resigned and claimed he had been constructively dismissed. Hook was unsuccessful with his case in the Employment Authority and took an appeal to the Employment Court where he received the same result.

The process followed by the employer fulfilled their obligations to be active and constructive in the employment relationship. In the absence of Hook attending the meeting, the employer provided him with the proposed decision and an opportunity to comment on it before finalising the decision. This is a tedious process but putting a deadline on it meant that the timing didn’t drift and the employer could still complete the process.

Hook didn’t help his case by having posted on Facebook his intention to resign, nor that his description of the meetings with the manager were totally at odds with others present. The Judge found that she preferred the evidence of the other witnesses.

Tuck this story in your back pocket for the next time you have to deal with an employee who won’t attend disciplinary meetings, and you will have a good safe process.

 

 

 

Anne Aitken, HR Professional, anne@anneaitken.co.nz