... is it fair?

Here’s a case that had me scratching my head.  See what you think. 

It’s the Employment Relations Authority’s decision in Rubie v Brambles New Zealand [2011] NZERA Auckland 63. 

Background

An employee  misrepresented their work absence  and was  formally warned

An employee  was absent from work.  He texted his supervisor, and misled her about the reasons for his absence.  The employer became suspicious and investigated.  It exposed his misleading behaviour and issued him with a written warning about his conduct.  It said that a similar breach in the future could result in dismissal.  The warning was to remain on the employee’s personal file for the duration of his employment.

 The employee felt wronged & entitled to a legal resolution

The employee thought that the extent of the warning was unfair.  There was a mediation.  The matter wasn’t settled, but the employer amended the warning so that it had a duration of 12 months only.

The employee, still not satisfied, proceeded to the Employment Relations Authority.  The Authority found in favour of the employee, and held that the issuing of a first and final warning in all the circumstances was an unfair and unreasonable action.  Even taking account of the employee’s actions (and contribution) it awarded him $1,000 compensation for distress.  It also confirmed a warning with a 12 month expiry.

What about commonsense and fairness?

There are several aspects to this decision that I find intriguing.

One

The first is that it got to this stage at all.  Is it really worth litigating something like this?  Surely the relationship between this employee and his employer must be challenged (to say the least) after each incurred the cost – and time – of going to the Authority.

Two

Secondly, what is wrong with a warning that stays on an employee’s file?  I’m not aware of any legal requirement necessitating warnings having expiry time limits – although it appears to have become something of a habit over recent years.  I can remember warnings that have been placed on an employee’s file – but whose weight has diminished over time (to the point that, after a year it would be imprudent for an employer to rely upon one in dismissing for subsequent conduct).

Three

Thirdly, is it right that this employee should be compensated for distress about all of this?  The employer simply did what it thought was right – in response to the employee’s own wrongdoing.  Yet, standing back from the law, it is the employee who has been compensated at the end of this case.  As a lawyer, I can understand how this has happened – but as a business person I would struggle to see how this outcome is “fair”.

Four

Finally, the most significant observation is the fact that this case was determined before the amendments to section 103A (the provision which requires the Authority to assess what a reasonable employer would have done in all the circumstances).  I have a feeling that, with the more liberal discretion now given to the Authority (to assess what a reasonable employer could have done) this case would be less likely to succeed.

What do you think?