Employment Law Specialist Craig Mundy-Smith on some recent cases where workers have told their bosses what to really do with their job.

Swearing at the boss and telling them where to stick their job seems like fair grounds for a sacking – but if the boss gets too hasty, things are likely to get expensive.

That’s the case for several employers who’ve hit the headlines recently paying compensation to workers they’ve fired for vitriolic outbursts. On the surface, it seems unfair to be forced to pay someone you believe has wronged you – but the justice is in the detail.

Take the situation of the owner of the ‘Valley Flyer’ bus service.

The company was ordered by the Employment Relations Authority to pay bus driver Cazna Waaka $10,000 compensation for unjustified dismissal and disadvantage. Ms Waaka was fired after calling her supervisor a “f…ing bitch” and telling her to “stick your job up your f…ing arse”.

The spokesman for Valley Flyer was quoted as wishing Ms Waaka “All the best for her future”. Ms Waaka told reporters she would use the money to help pay for her upcoming wedding.

In 1977, in a more innocent time, country music singer Johnny Paycheck topped the country music charts with his one hit wonder “Take this job and shove it”. Part of the song’s popularity was based on a shared understanding that it was a subversive wish fulfilment fantasy. The listeners knew that to react in that way would be a career-ending move. No one would dream of claiming compensation from their ex-employer.

Fast forward to 2012. In just the last few weeks newspapers have reported that:

• Nelson telemarketer Karyn Cumming was awarded $5000 for unjustified dismissal after a heated argument with her supervisor where she said she would “smash” her boss if she did not shut her mouth. At a subsequent meeting, Ms Cumming warned that she might react again if her supervisor “got in her face again”. The Employment Relations Authority noted that there was “no apparent indication of subsequent remorse” from Ms Cumming; and

• West Coast labourer Andrew Murphy was awarded $5625 for unjustified dismissal after telling his supervisor “Get f…ed, it’s not my job, I’m not doing it” after being asked to repair a broken van door. After winning his case Mr Murphy told reporters “I was not in the wrong. They got rid of me unjustly”.

How can these Employment Relations Authority decisions be explained?

The key lies in looking at the details of the case. Often there will have been flaws in the procedure followed by the employer to dismiss the employee. While some lay-people may consider procedural defects to be a mere technicality, in law they can have important consequences.

In the case of Ms Waaka, Valley Flyer failed to follow its own agreed disciplinary process. Valley Flyer dismissed her instantly by letter without any investigation and without meeting with her to discuss its intended decision.

Ms Cummings was not allowed a support person at a disciplinary meeting held shortly after her alleged threat to her supervisor. The nature of the meeting was misrepresented and she was not given notes of that meeting. She was also not given the opportunity to comment on the decision to dismiss her.

Mr Murphy was not able to make any submissions to the person who made the decision to dismiss him, despite several attempts to try to speak to him.

But for these mistakes, Ms Waaka, Ms Cummings and Mr Murphy might have been justifiably dismissed. Because of these mistakes, the dismissals were tainted and unfair. Accordingly, their employers were ordered to pay compensation for humiliation, loss of dignity and injury to feelings.

The sums awarded were reduced for the employee’s behaviour contributing to the dismissals by 50 per cent for Ms Waaka’s unjustified dismissal grievance, 50 per cent for Ms Cummings and 25 per cent for Mr Murphy. The dismissed employees were not being rewarded for their misconduct, even if the headlines seem to suggest this.

The clear message being sent by the Employment Relations Authority is even if the behaviour appears outrageous, employers must still follow a fair disciplinary process. Whilst this may appear to laypeople to be pedantic, far greater injustice would result if employers were permitted to dismiss employees on the basis of lax or slipshod investigation and disciplinary processes.

The lesson to be learnt from this is that even ‘open and shut’ cases need to be carefully handled. It is important to obtain objective, independent legal advice from the outset. Angry, knee-jerk reactions can become expensive!

By Craig Mundy-Smith, first published in The New Zealand Herald

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