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Importance of procedural fairness with dismissal

Procedural fairness in dismissal cases is extremely important.

The minimum requirements are that

  • the employee must be told of the specific allegations against them and advised of the consequences if those allegations are established.
  • the employee must be given a proper opportunity to refute, explain or mitigate those allegations.
  • the employer must consider the representations made by the employee with an open mind and, if those allegations are established, impose a penalty that is within the range of reasonable responses for the misconduct that has occurred. In other words, the punishment must fit the crime.

In overturning an Employment Tribunal decision that found that an employee had been unjustifiably dismissed but was not entitled to any remedies because of 100% contributory fault, the Employment Court has again emphasized the importance of procedural fairness in dismissal cases.

The Department of Internal Affairs employed John Doe (real name suppressed) to assist a Government Minister. Mr Doe's employment contract provided that his employment could be terminated if, amongst other things, "irreconcilable differences" existed between him and the Minister.

Mr Doe attended a Christmas party and left "probably drunk". Upon arriving home, he had a dispute with his wife. The Police were called and he was charged with assaulting a female.

He appeared in Court and pleaded not guilty to the charge. He did not apply for name suppression. The media reported the case and his link with the Minister. When Mr Doe next appeared in Court, he applied, and was granted, name suppression. The Police later withdrew the charge.

In the meantime, Mr Doe's manager became concerned that the media coverage was discrediting the Minister. He discussed the matter with Mr Doe, but did not advise him that the situation could lead to the termination of his employment. Later, Mr Doe was dismissed for having "irreconcilable differences" with the Minister.

Mr Doe brought a personal grievance against the Department, and the Employment Tribunal held that his dismissal was unjustified on the grounds that there was a total lack of procedural fairness. However, the Tribunal declined to award him any remedies at all as it considered that he had contributed to his dismissal to such an extent that he was 100% responsible for his downfall. Mr Doe appealed to the Employment Court.

The Employment Court upheld his appeal.

"there is no doubt that the publicity surrounding the events of early December would have created some embarrassment for the Minister, but in the absence of any attempts to control the situation and any opportunity for Mr Doe to do so, it is impossible to conclude that there were any irreconcilable differences on any objective standard" the Judge said.

The Judge also held that the word "irreconcilable" presupposed that some attempt had been made to reconcile the differences between Mr Doe and the Minister, which had not happened. Furthermore, that Mr Doe did not contribute in any way to the procedural unfairness that occurred, and so he could not be 100% responsible for his dismissal. The Judge awarded him $11,483 in lost wages and $5000 compensation for humiliation and distress.

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