Unbiased investigation

The Employment Court recently considered the independence of the employer's decision-maker in the case of Allen v C3 Limited [[2012] NZEmpC Auckland 124; 31/07/2012; Judge Inglis].

Mr Allen had been employed by C3 for 15 years as a forklift driver.  He agreed to work the public holiday on Auckland Anniversary Day on 31 January 2011.  He was due to commence work at 7.00am but earlier that morning a supervisor realised that the work had been completed a lot earlier than they expected and they did not need Mr Allen. He sent Mr Allen a text message but Mr Allen didn't have his cell phone switched on so he arrived at work at 6.45am.  The supervisor offered Mr Allen half an hour's work which would have made him eligible for payment for that day and a day off in lieu.  Mr Allen declined the offer and returned home at 7.00am.  Mr Allen later applied for half an hour's pay and a day off in lieu but the company disallowed it.

Sometime later, when Mr Allen realised he had not been paid for the half-hour or the claimed day in lieu he sought a meeting with a manager, Mr Payne.  The meeting was arranged for 3.00pm on 22 February after Mr Allen had finished a 12 hour shift.  Mr Payne told Mr Allen that because Mr Allen had been sent a text message advising him that he did not need to come in to work and as it was a requirement that he be contactable, he was not entitled to pay and a day off in lieu.  Mr Allen became upset, stood up and said “Is that it?” to which Mr Payne said “Yes, that’s it”.  Mr Allen took this to mean that the meeting, which he had requested, had come to an end.  He left the office.  However, Mr Payne called him back saying words to the effect that he had not finished speaking to Mr Allen.  Mr Allen told Mr Payne to “get fucked” and he made an obscene gesture with his middle finger.  Mr Allen did not return to the meeting. 

Mr Payne made a decision to investigate Mr Allen’s conduct.  Ultimately a meeting was held at which Mr Allen admitted insubordination and obscene language.  He reiterated that he had not received the text message before arriving at work and Mr Allen was recorded as saying “What do you want me to say?” and “If I need to apologise then I will I suppose”.  The meeting was adjourned after Mr Allen was advised that dismissal was being considered and after a short break the employer terminated Mr Allen’s employment with immediate effect with one week's notice being paid in lieu.

The Court considered the case of Walker v Boehringer Ingelheim (NZ) Limited where Judge Travis in the Employment Court observed that it is unwise for a person directly involved in events to be allowed to make a decision, where this can be avoided. 

Importantly, from an employment law perspective, the Court confirmed at paragraph 25:

                        “There is no immutable rule that the person complained about cannot act as decision-maker, and there will be circumstances in which it is not practical to do otherwise”. 

The Judge however held that C3 was a large organisation and someone other than Mr Payne could and should have undertaken the process.  The Judge held at paragraph 27:

                         “Mr Payne's roles as complainant, witness, and decision-maker were incompatible.  An objective observer would not conclude that he had brought an unbiased mind to the decision to dismiss.  The multi-dimensional role he assumed was not how a fair and reasonable employer would have acted, and fell short of the standard in s 103A”.

The Judge concluded at paragraph 30 that:

                                “The process followed by the defendant company was procedurally flawed.  I do not accept the submission advanced on behalf of the defendant that it would have made no difference having a different decision-maker.  A different decision-maker would have been able to approach the issue objectively, and weighed the seriousness of the admitted conduct, and Mr Allen’s response, against the other relevant considerations - including his work history and the circumstances surrounding the 22 February meeting.”

The Court then discussed whether there were sufficient grounds for dismissal.  The Judge found that the language and the obscene hand gesture amounted to misconduct but not to serious misconduct requiring dismissal.  The Court directed that Mr Allen be reinstated, and that he be awarded three months’ lost remuneration. There was no evidence of hurt feelings so no award was made under that head.


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