A Ltd v H and Nel v ASB

Colin Craig is the most high profile person in recent years to destroy his career over an infatuation, but is by no means the only one. This is the story of two men, both aged 51, who were attracted to younger women and ruined their careers.

The first, Mr H was a commercial pilot on a long haul stop over. There was risqué banter by the crew members around the pool. Later, as the crew were heading to bed, he entered the hotel room of a 19 year old cabin attendant, sat on the bed she was in and touched her thigh. She said it was deliberate, he said it was accidental. A disciplinary process was followed and he got sacked. The employer then received complaints from three other women.

The second, Mr Nel, was Senior Commercial Manager with ASB Bank, managing four teams of commercial accounts and relationships managers. Like the first story, there was light social chat amongst the team that  became a little unprofessional and was misread by Mr Nel. He became infatuated with one of the much younger women who worked for him and started texting and emailing her. Eventually he sent her a long email starting Hey sxy…I’m head over heels for you…

The recipient of the messages was very uncomfortable but remained respectful, telling Nel that she saw him as a good friend, nothing more. Her email set professional boundaries asking him not to call her inappropriate names at work as it undermined her, and hoping they would not discuss the issue again but would continue with a professional relationship. Unfortunately Nel couldn’t drop it and kept referring back to the situation and then moved his desk to sit beside her. Eventually the woman raised her concerns with another manager and then with HR. A disciplinary process was followed and he got sacked.

Both men took personal grievances, putting their behaviour out in the public domain for everyone to know about. The Employment Authority found that the process leading to Mr H’s dismissal was justifiable and dismissed the personal grievance.

H appealed the decision to the Employment Court which found that the employer had tested Mr H’s account [of the incident] vigorously but had not taken the same approach to the evidence of [the complainant] or another witness, citing that the interviews with H had been recorded and transcribed, while the other witnesses had notes taken of their interviews. It concluded that these procedural defects were significant breaches of natural justice and therefore the evidence was unreliable. Secondly he found that there was disparity of treatment because a different pilot was not dismissed for a similar previously. The grievance was successful and reinstatement was ordered.

The employer took the matter to the Court of Appeal. It concluded that the law provides that there may be a variety of ways of achieving a fair and reasonable result in a particular case… The requirement is for an assessment of substantive fairness and reasonableness  rather than “minute and pedantic scrutiny” to identify any failings. It concluded that the process followed by the Court ‘has got in the way of a direct application of the statutory test’ and overturned the Court decision, setting aside the decisions to reinstate and  for payment of lost wages and compensation.

This is a huge relief because the Court’s excessive emphasis on following legalistic procedures with recording and transcribing interviews has shifted the focus from the substance of the incident to the procedures followed.

With Mr Nel, the Authority agreed that the behaviour amounted to serious misconduct, the procedures followed were fair, but the decision to dismiss was unfair. It reached this conclusion on the basis of his level of remorse, that during the disciplinary process he was not suspended and no steps had been taken to prevent Nel from meeting the woman, and he had continued to perform his duties diligently during the investigation.

The Authority gave serious consideration to ordering reinstatement, but decided against it on the grounds that Nel had blamed the woman for his dismissal and had threatened other staff that they would be called as witnessed in court if he was not successful in the Authority, and they could go to prison if they refused.

In the end the Authority awarded him 7 months lost wages and $15,000 hurt and humiliation, both of which were reduced by 90 percent for his contribution to the situation, so he received a bit over $11,000.

There are some really obvious messages here – follow good process, make sure the decision is appropriate for the offence and if you are a 51 year old bloke who fancies a younger colleague be very, very careful.