Is an intern an employee? According to a recent Employment Relations Authority (ERA) case the answer is yes. This decision, along with a general trend on what is deemed to be work is once again in the spotlight.
Ivan Ilin, an employee at the Meadow Fresh milk processing facility in Christchurch, was dismissed for drawing a swastika on his company overalls, just a few days after the Christchurch mosque terror attacks.
Four days after the attacks Ilin was asked by a colleague what he thought about the attacks. In response Ilin drew a swastika on the front of his overalls as well as a tally of 15 marks.
A complaint was made and when his manager asked him to explain his actions, he claimed he was “joking around” and “meant nothing by it”.
Meadow Fresh initiated a disciplinary process and at the investigation meeting on 25 March, Ilin reiterated the incident was “an ill-timed joke”. His explanation for the 15 tally marks was that it was in reference to the number of broken crates. The company reported the incident to the police and when questioned by the police, Ilan’s reason for the tally marks was to keep count of the press ups he did at work.
On 29 March the company reconvened the investigation meeting and Ilin submitted that he was not a racist, his wife was Chinese and he had many friends from different ethnic backgrounds. He said he “does not support the atrocities of 15 March or the associated ideology”. His union representative suggested a final written warning and an apology would be an appropriate disciplinary outcome.
The company disagreed and dismissed Ilin for serious misconduct. He raised a personal grievance claiming the dismissal was unjustifiable. Part of his claim was that the company used the incident as an excuse to dismiss him so they could avoid paying him redundancy compensation, as he would have been made redundant in April anyway.
The Authority concluded there was no evidence of this claim and upheld the company’s decision to dismiss stating, “I find Goodman Fielder’s actions and how it acted, were what a fair and reasonable employer could have done in all the circumstances.”
The lesson here is that irrespective of subsequent claims of regret and apology, or that the behaviour was intended as ‘just a joke’, it does not make the behaviour acceptable and depending on the circumstances it is justifiable to dismiss an employee for that behaviour.