Employment Matters

The case for Skype
Matthew Dearing reminds business owners that caution should be exercised when using Skype in employment disputes.

Advances in technology are having an increasing impact on employment relationships and changing the way people interact in the workplace.
For example, Skype phone calls and video chats have been used by employers for a number of years for a variety of purposes: from interviewing a job candidate in another part of the country or world, to conducting meetings between staff in different locations.
The use of Skype is becoming a popular and effective communication tool in the modern workplace. However, there are some situations where the use of Skype would seem to be inappropriate, such as informing an employee that their employment is being terminated.
But as one recent Employment Relations Authority determination demonstrates, there may be situations in which using Skype to conduct a meeting that ultimately results in the dismissal of an employee is acceptable.         
In the case of Maureen Blackman and Kiwi Care Preschool, Ms Blackman was employed by the preschool to work 37 hours a week, Monday to Friday, and undertake the tasks of cleaning, acting as a teacher’s aide and preparing food. On February 2, 2012, she was asked to attend a meeting with the preschool’s new manager, Ms Owen. During the meeting Owen outlined proposed structural changes to Blackman’s role. These changes involved removing Blackman’s duties except for the cleaning aspect and reducing her hours of work to eight per week, to be performed on the weekend.
Upon hearing this proposal, Blackman became extremely angry. In a fit of rage she allegedly swore in the presence of children and began to slam doors. She generally made such a rumpus before storming out that neighbours emerged to find out what was going on, and other staff members became concerned for the children.
As the meeting had gone so badly, Owen referred the situation onto Kiwi Care’s managing director Ms Anderson. On February 3, Anderson spoke to both Blackman and Owen in a meeting via Skype. Essentially the meeting was an attempt by Kiwi Care to get the relationship back on the rails. However, Blackman had formed a concrete view that she had been given an ultimatum by Owen the previous day that she either accept the changes or leave, and that she had been dismissed after refusing to accept the changes.
Anderson did her best to reassure her that this was not the case. However, Blackman went into the Skype meeting with what the Authority described as a completely negative attitude that was characterised by articulating her contempt for her employer and being unwilling to engage in a calm and rational fashion.
During the meeting Anderson proposed a settlement payment to Blackman to resolve the employment relationship problem, which Blackman refused. Faced with such hostility,  Anderson considered that it had become apparent that Blackman had lost trust and confidence in her employer and dismissed her.
Blackman raised a personal grievance alleging that she had been unjustifiably dismissed. Kiwi Care resisted the claim and relied on the apparent loss of trust and confidence exhibited by Blackman in her employer – as demonstrated by her behaviour in the Skype meeting and by her reaction on February 2.
In upholding the dismissal as justified, the Authority noted that Skype was an unusual forum to use for such a meeting, particularly as it ended up with a dismissal. However, it considered that a fair and reasonable employer could conclude that:
“…when confronted with an employee who appears to have developed a strong negative mindset against her own employer and is unwilling to work through employment issues in a rationale and common sense way, such an employee has lost trust and confidence in her employer to such an extent that the only reasonable course of action is to bring the employment to an end.”      
The Authority also made it clear that there was nothing improper about Anderson’s offer of payment to settle the employment relationship problem. It stated that Anderson’s observations during the meeting were entirely sensible, and that she would be failing in her duty if she did not contemplate trying to resolve matters by agreement.
While there are unusual factual elements to this case, it does demonstrate that there are situations where an employer can justifiably dismiss an employee during a Skype meeting.  
However, the decision should not be taken as a green light for employers to dismiss employees via Skype or other similar media. Best practice dictates employers should always try and physically meet with employees face-to-face to resolve issues, particularly if dismissal or other disciplinary action is a possible outcome of the meeting.  
It is highly likely that the Authority would take a dim view of an employer who sought to avoid actually meeting with an employee by using Skype, no matter how uncomfortable it may be or because it may be more convenient.
As this decision shows, there are situations where a dismissal over Skype is acceptable, but they will be few and far between and employers should always seek professional advice before undertaking such action.
Matthew Dearing is a solicitor at EMALegal, the Employers and Manufacturers Association (Northern) Inc. www.ema.co.nz