Adams v Properly Plastered Ltd

Over the years that I have been writing these articles I have laboured the importance of good process in dealing with staff matters. This employer did not follow a good process but the outcome is refreshingly fair.

Chad Adams worked as a labourer for Properly Plastered Limited (PPL) for 12 months before he got in some legal strife which caused him to have a number of absences from work. Some of these absences he warned his manager about, others he just didn’t turn up to work. The manager gave Adams a couple of verbal warnings and then gave him a final warning for his unauthorised absences and attitude, noting that he had to do as a younger but qualified colleague Wright told him.

About a month later Wright asked Adams why he was carrying only one bucket of plaster instead of the two he should be carrying. Adams said he was carrying a cigarette in the other, although this was later explained as being due to an unreported sore back. Wright told him to f…off and started carrying the plaster himself. Adams left the site without telling the foreman, later arguing that he was following Wright’s instructions. Adams did not respond to the supervisor’s phone call or text asking where he was. The next day he turned up 10 minutes late and was greeted by a frustrated supervisor, and after a brief exchange again left the site. Again he didn’t respond to a phone call, this time from the manager. Next day he didn’t go to work.

The manager texted Adams that he had been given a final warning and his employment was now terminated. Adams emailed saying he had been ordered to leave the site, rather than he had left of his own accord. The manager checked the conflicting versions with others on site and concluded that Adams version was not correct. An email conversation ensued but the termination remained and a personal grievance was lodged for unjustified disadvantage – with the warning, and unjustified dismissal.

The test for justification requires that the employer acted in a manner that was both substantively justified and procedurally fair. A fair and reasonable employer is expected to: [my emphases]

• Sufficiently investigate the allegations, having regard to its available resources;
• Raise its concerns with the employee before taking any action or deciding to dismiss;
• Give the employee a reasonable opportunity to respond to the employer’s concerns before taking action or dismissing; and
• Genuinely consider the employee’s explanation before taking action or dismissing.

The Authority must not find an employer’s action or a dismissal to be unjustifiable solely on the basis of procedural defects if the defects were minor and did not result in the employee being treated unfairly.

The process used for the warnings was not fair – Adams did not have prior warning of the discussions or the right to have a support person with him. The final warning was issued without any meeting or opportunity for Adams to respond. The final warning was found to have caused disadvantage because it made his employment less secure, and to have been unjustified because of the lack of process. The employer based his decision to dismiss on the unjustified final warning.

The Authority found that the decision to dismiss was predetermined. There was insufficient investigation of the incident before the decision was made, Adams did not get a chance to respond to the comments from the other crew members.

The Authority then concludes that it is more likely than not that if [the employer] had carried out a fair process Adams would have been dismissed in any event. The dismissal was found to have been substantively justified. However, it was an unjustified dismissal because a fair and reasonable employer could not have made a decision to dismiss using the same process.

Lost wages were sought but the Authority concluded that the real reason for Adams’ loss of wages was his own actions so no award was made for this. Compensation for hurt and humiliation in this circumstances was determined to be $7000 which was then discounted by 70 percent to $2,100 for Adams’ contribution to the situation.

Once again process is a huge influence in whether the decision is justified, but the penalties in this situation remind me of King Solomon.

 

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