Defects in disciplinary process prove expensive

Thursday 2 July 2015

Authors: Tim Clarke and Liz Coats

​A recent decision of the Employment Court – Hoff v The Wood Lifecare (2007) Ltd – has highlighted some common issues that trip employers up when running a disciplinary process. In particular, the decision emphasises the importance of putting all relevant allegations to an employee in a timely manner before an employee is dismissed.

Facts of the case

Ms Hoff worked as a caregiver at “The Wood”, a retirement village. The incident which led to Ms Hoff’s dismissal took place in a studio for sale at The Wood. The Wood’s receptionist was showing the studio to some potential buyers. When the receptionist opened the door, she found The Wood’s gardener in the studio. The gardener appeared taken unaware, and there were glasses and a set of keys on the bed. While looking around the studio, one of the visitors commented that there was someone in the bathroom hiding behind the door.

After this incident, the receptionist gave a statement to the Facility Manager. The Facility Manager met with the gardener, who confirmed that he and Ms Hoff had been in the studio. He said that Ms Hoff had opened the door to the studio for him so that he could look after plants on the deck (which had happened several times before), and that she had hidden as they had been gossiping and she did not want to be found out.

The next day, the Facility Manager met with Ms Hoff. Ms Hoff confirmed that she had been in the studio talking with the gardener when the guests had arrived. She said that hiding was a “stupid thing to do”, but emphasised that she had finished work and this had not taken place during work hours.

Ms Hoff was required to attend a disciplinary meeting conducted by the Facility Manager and General Manager. At the meeting, Ms Hoff’s husband provided an explanation on her behalf for what had taken place.

During a break, the General Manager spoke with the receptionist to confirm the time the incident took place. This information was not passed back to Ms Hoff, but she was then asked several questions regarding timing.

Following a second break in the meeting, the General Manager (reading from a typed statement) confirmed that Ms Hoff’s explanation was not accepted, serious misconduct had taken place, and her employment was to be terminated with immediate effect.

Allegations “sprung” at meeting

The Court found that there were significant defects with the disciplinary process which meant that the decision to dismiss was procedurally unjustified.

The fact that Ms Hoff had remained on the premises after her shift had finished and allowed the gardener access to the studio using her keys were important factors in the decision to dismiss. However, this was unfair because there was no information provided to Ms Hoff with the letter of allegation relating to those issues in advance of the disciplinary meeting (contrary to The Wood’s good faith obligations).

Rather, relevant information was “sprung” on Ms Hoff during that meeting. If this information had been properly provided in advance, then Ms Hoff may have been able to obtain evidence supporting her movements from other witnesses.

Decision to dismiss predetermined

The Court found that the decision to dismiss was also substantively unjustified, because the decision was predetermined before the disciplinary meeting took place.

There had been rumours of Ms Hoff and the gardener being seen together giggling, hugging and kissing prior to this incident. During a disciplinary meeting with the gardener, the General Manager confronted him about these rumours and suggested that this behaviour was inappropriate. However, the rumours were never raised with Ms Hoff.

The Court found that it was implausible to suggest that the rumours played no part in the dismissal. It found that the General Manager had clearly reached a view before the disciplinary meeting that the alleged behaviour between the gardener and Ms Hoff was inappropriate. This predetermination meant that it did not matter what explanation Ms Hoff gave, the General Manager had already determined that the rumoured behaviour constituted serious misconduct.

In short, the Court concluded that “the decision to dismiss was not made in good faith based on the matters set out in the letter of allegation. It was strongly influenced by the workplace rumours and most likely premeditated.”

Remedies

The unjustified decision to dismiss Ms Hoff proved costly for The Wood. It was ordered to pay Ms Hoff just over six months’ lost remuneration as well as $20,000 compensation for injury to feelings. These amounts were reduced by 10% to reflect Ms Hoff’s contribution to the facts giving rise to the grievance.

Tips for employers

Most employers are aware of the importance of conducting a careful and thorough investigation and disciplinary process in relation to allegations of serious misconduct.

This case highlights the following particular points for employers to keep in mind:

  • Provide information in advance: Provide employees with all relevant information before a disciplinary meeting. In particular, if there is background rumour or speculation that is relevant to an employer’s concerns about a particular incident, make sure that background is presented to the employee in advance.

  • Clearly describe all allegations: In any invitation to a disciplinary meeting, set all of the allegations clearly. If a new allegation later arises, this should also be put to the employee so that they can respond.

  • If new information arises, provide that as well: If the employee’s explanation during the disciplinary meeting raises new information or issues, adjourn the meeting to conduct further inquiries. If those inquiries bring relevant detail to light, provide that detail to the employee before reconvening the meeting.

  • Avoid appearance of predetermination: If possible, do not notify an employee of their dismissal by reading off a typed statement. Even if the typed statement has been prepared after hearing the employee’s explanation and considering all relevant information, it can convey an impression that the employer made up its mind before hearing from the employee.


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Tim Clarke

    Partner Auckland
  • Rob Towner

    Partner Auckland
  • Rachael Brown

    Partner Wellington
Related areas of expertise
  • Employment and workplace safety