Employment Matters- A lesson in procedural fairness

When going through a formal disciplinary process with an employee is it important to provide them with all relevant information relating to the offending action, at the earliest opportunity.

A case in point is that of Mr Bailey who was employed by PTS Logistics as a casual, on-call truck driver. He claimed he was unjustifiably dismissed after an incident with the police on August 6 in 2011.

Bailey would drive from one region to another, including between the North and South Islands. On one of the trips, he received permission from his manager to stay two nights in Taupo in order to attend his daughter’s 18th birthday party on August 5 that year.

On the morning after the party Bailey discovered there as an issue with the truck’s radiator hose. He bought a replacement and installed it with the assistance of a friend to fix the problem.

The pair took the truck on a test drive to ensure that the problem had been remedied. During the test drive, Bailey was stopped by police for a routine roadside vehicle check. Unfortunately for Bailey he was unable to produce his log book and the situation quickly deteriorated from there with him ultimately driving away. There was a short pursuit that ended with Bailey being pepper sprayed, arrested and charged with failing to remain stopped.

On August 8, the general manager of PTS Logistics received a police inspection report detailing the incident. After his further exchange of information with the police, he issued a notice of a disciplinary meeting to Bailey for serious misconduct.

The disciplinary meeting was held on August 12. At the start of the meeting, Bailey set out his account of the facts. Once he had finished, the general manager provided him with a copy of the “Caption Summary of Facts” and advised him of the inconsistencies between his version of events and the police version of events.

The meeting lasted approximately 35 minutes and was then adjourned for ten minutes while the company considered the information to hand. Bailey was then advised he was being dismissed with immediate effect.

Bailey raised a personal grievance within the 90-day required time period but did not pursue the claim until after his defence of the criminal charge following the incident.
Once a personal grievance has been raised within the 90-day time period, a person then has three years to pursue it.

Procedural fairness
The Employment Relations Authority considered whether the actions of PTS Logistics were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred.

Unfortunately for PTS the Authority found there were aspects of the procedure that were critically flawed. In particular, the Authority said the information obtained from the police was not disclosed to Bailey until after he had told his side of the story. Considering the amount of weight PTS placed on the information from the police it should have disclosed that to Bailey prior to the meeting. Alternatively, the company should have provided it to him at the start of the meeting and then adjourned the meeting to give Bailey time to consider it.

The Authority reaffirmed the principle that a fair and reasonable employer cannot reasonably expect an employee in a disciplinary setting to accurately anticipate or guess what the primary concerns of an employer may be. This meant that the dismissal of Bailey was held to be unjustified on the basis that it breached procedural fairness requirements – as actions need to be justifiable both substantively and procedurally.

The Authority awarded Bailey $5,000 for hurt and humiliation but reduced the amount by 80 percent for contributory conduct, resulting in the final award being $1,000.