Unjustifiably Dismissed but no Award Given

A Wellington restaurant has been found to have unjustifiably dismissed its former head chef, even though the chef had attempted to sell methamphetamine to co-workers.

While on holiday in Fiji, a director of Gatsby, Ms Buttula, received a text from a friend and regular customer at the Gatsby to say one of the employees, SJB, had told him the head chef, QWI, had offered to sell “P” to SJB. Immediately upon her return, Ms Buttula, went to the Gatsby and told QWI of the allegation that she was offering drugs at work. QWI denied the accusation.

The next day Ms Buttula spoke to SBJ who confirmed QWI had come into the kitchen and offered him methamphetamine. She also asked four other staff whether or not similar offers had been made to them. One said yes.

When QWI arrived at work to commence her shift the following day, Ms Buttula raised the allegations of drug supply and QWI asked if she would need a lawyer. Ms Buttula replied she wouldn’t need anything like that and they would meet to discuss the issues the following day.

The next day when QWI arrived for her shift, Ms Buttula was standing in the bar and simply told her to leave. A brief discussion followed and Ms Buttula told QWI she was being dismissed immediately. However, QWI was not given a chance to respond. The dismissal was confirmed by letter a week or so later.

This is where things get interesting…

Gatsby accepts it dismissed QWI. The Employment Relations Authority had to consider whether the dismissal was justifiable. This means, did the employer, having regard to the resources available to it, sufficiently investigate the allegations. As a bare minimum, this means the employer putting its concerns to the employee, allowing an opportunity for the employee to respond and then to consider the response with an open mind.

The answer here was no, the dismissal was not justified. QWI arrived at work and was immediately told she had been dismissed. There was no discussion.

The next question for the authority was, did the employer have resources to investigate available to it, and the answer here was yes. Gatsby had access to two sources of professional advice; its accountant who handled the majority of staff related matters and the services of an industry association.

Now things get really interesting…

Because the dismissal was found to be unjustified the question of remedies was raised. QWI sought three months wages and $10,000 compensation and costs.

Here the Authority referred to a previous Employment Court decision that concluded there may be times when there is misconduct that is so outrageous that no remedy should be given – even though a personal grievance is established.

The Authority only needed to establish whether QWI did as was alleged on the balance of probability and not to the criminal standard. The Authority concluded on the balance of probability that she did as alleged and that this was a situation where remedies should not result.

Even though QWI was unjustifiably dismissed, she received no money from Gatsby.

Conclusion – we do not recommend such a risky approach to dismissing an employee! Please call us if you wish to dismiss your employee for ‘outrageous’ misconduct and let us help you avoid a costly trip to the Authority.