McCormick v Compass Communications Limited – minor procedural flaws do not render a dismissal unjustified 

The Employment Relations Act now includes a clause that states that minor procedural flaws should not render a dismissal unjustified. The $64,000 question, is what is minor and what is a fatal flaw? Compass Communications found out the hard way.

Mr McCormick worked for Compass Communications for eight years as an installer of wireless broadband connections. He was working at an isolated site out of cell phone coverage, with an apprentice. He needed to climb onto the roof but didn’t have his ladder extended far enough to get there. Instead of getting off the ladder, he raised it while still mounted, using a jumping technique. His hammer fell off the ladder and hit the apprentice on the head, causing a nasty gash and bleeding. The customer administered first aid and the apprentice urged McCormick to finish the job rather than take him for medical attention.

When he got back into phone coverage, after they had finished the job, McCormick called the office to let them know. The managers were less than happy with the situation and launched an investigation into his actions. McCormick, the apprentice and the customers were interviewed as part of the investigation. McCormick admitted his errors and said it wouldn’t happen again.

The conclusions reached in the investigation were that McCormick had:

failed to adhere to the health and safety policy;

failed to observe all safety precautions;

acted negligently causing head injury to a colleague;

failed to immediately report the accident to the office;

failed to arrange immediate medical attention

reported to work in such a condition that duties were unable to be carried out properly and safely.

The investigation report recommended dismissal for serious misconduct. The chief financial officer reviewed the report and agreed to a disciplinary process being taken. The disciplinary process was carried out by the same two people who had conducted the investigation that had recommended dismissal.

McCormick was provided with some of investigation report but not all of it and he was unaware the investigating managers had recommended dismissal. At the disciplinary meeting the managers did not advise McCormick that they were considering dismissal, and therefore did not give him an opportunity to respond to the proposal before they acted (as required under the Act).

Again, after the disciplinary meeting the managers reported back to the chief financial officer, who agreed with their recommendation to dismiss McCormick, which was duly done. Followed by a personal grievance for unfair dismissal.

The Employment Authority examined whether the McCormick’s actions fell into the category of misconduct (and therefore warrant a warning) or fell into the category of serious misconduct, and therefore summary dismissal was a course of action open to the employer. He concluded that it constituted serious misconduct.

The Authority did not agree with all the conclusions reached by the investigation particularly – failure to seek medical attention immediately and failure to report the accident immediately. Most inappropriate, however, was the finding of reporting to work unfit for duty – McCormick said he was tired that day.

The Authority also found that the procedure followed was fatally flawed on four grounds.

Firstly, the same two managers who had recommended dismissal were then responsible for conducting a fair disciplinary process. The Authority concluded that there was an element of predetermination in the disciplinary process and that the recommendation to dismiss was prematurely prejudicial for McCormick.

Secondly, McCormick should have been given the full investigation report, including the recommendation to dismiss and sufficient time to seek advice. Thirdly, he was not given an opportunity to comment on the company’s proposal to dismiss him.

Finally, the decision to dismiss was made by the chief financial officer. At no time was McCormick given the opportunity to speak to the decision maker directly. The right to be heard by the person who makes the decision is a fundamental principle of natural justice.

McCormick was awarded $12,000 for hurt and humiliation, this was reduced to $8,000 for his contribution to the situation. Interestingly, although he had remained unemployed since the incident in October until the hearing in July, he was not awarded lost wages as he did not provide evidence he had tried to mitigate his losses.

McCormick admitted it was a dumb thing to do and he could have killed the apprentice. This should have been a very straight forward process, and if the managers had stepped back and got some sound advice before dismissing McCormick, it would have been justified.

 

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