Hall v Dionex PTY Ltd

The fundamental story behind Mr Hall’s employment relationship problem with Dionex is a complex one, but it is worth sharing because of the impact this decision has on the level of payments for hurt and humiliation compensation.

The story starts in 2011 when Dionex, a global supplier of scientific equipment, had been bought by Thermo Fisher and the NZ branches were being progressively integrated. Mr Hall was employed as the NZ Sales and Services Manager, a role he had for about 7 years. The cultural norms in Dionex were considerably more flexible than is acceptable in most professional organisations. Hall, had used the company computer to access websites advertising sensual massages and topless women. On the instruction of his manager (who was present at the time) he had used his company credit card to buy meals, drinks and escort fees at bars in Thailand, and he had photos of Thai escorts sporting Dionex tee shirts. In all he ran up over $6000 of dubious expenses in Thailand on the company credit card. (The manager and another senior person had exited the company by the time Mr Hall was called to account for these incidents.)

The new company had a much more conservative code of conduct and called Mr Hall to account for his behaviour and this is where it starts to get tricky. The companies were in the process of integrating so the identity of the employer needed to be established. Having concluded it was Dionex, was it then appropriate to apply the Thermo Fisher code of conduct to employees of another company? Once the manager of Dionex departed, who in Dionex had the authority to discipline Mr Hall?

A director of Dionex who was also an employee of Thermo Fisher in Australia delegated authority to a Thermo Fisher NZ staff member to manage the disciplinary process. Mr Hall was instructed to attend a meeting in Auckland on 12^th December, without any indication of the purpose of the meeting, and was advised he was being suspended (you will have spotted the procedural flaws here – no opportunity to prepare for the meeting or bring a support person).

The manager who was leading the process was in a hurry to get the matter wrapped up before Christmas and the holidays and proceeded with unseemly haste. She provided specific details of the allegations on 16^th December, with Mr Hall receiving it at 8pm on the Friday night. A meeting was held on the 21^st and the following day, after 5pm, Hall was advised by letter that the manager had decided to summarily dismiss him. He was given until 3pm on Friday 23^rd December to respond to her letter. Hall emailed the manager and advised that his lawyer had already gone away for the Christmas break and he could not respond until after the lawyer had returned. He asked for an extension of the period until 5pm on 16^th January to respond. This was declined and at 13 minutes past the deadline, Hall received confirmation of his immediate dismissal.

The decision was found to have been premeditated and lacked justification on both procedural grounds and substantive grounds, given the lax culture that had prevailed at Dionex.

That’s just the background.

The dismissal happened in December 2011 and the Court hearings were held over 8 days in February and November 2014, with the decision being issued in March this year. By the time of the final hearings Hall had amassed 4 Eastlight folders of job applications, all of which had been unsuccessful. He sought lost wages for the full period, but was awarded 6 months wages on the basis that his relationship with the new company was unlikely to have lasted longer than that.

By the time of the Court hearings Employment Lawyers had expressed concern that compensation for hurt and humiliation had been largely unchanged for 20 years, and needed to be increased to reflect inflation. The Judge picked up on this and commented that ‘while there is a need for a degree of consistency with other cases, there is a danger of using consistency to keep awards at an artificially low level.’

Hall was awarded $18,000 compensation. This and the 6 months wages were reduced by 50 percent for Hall’s contribution to the situation. Ironically, the average award from the court prior to this was $9,600 after deductions for contribution, so he got a little below average.

The message is to watch for the inflationary effect of this judgement on awards for hurt and humiliation. They will start to increase and possibly quite dramatically. Secondly, don’t rush the process.

 

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