Importance of procedural fairness with dismissal

In overturning an Employment Tribunal decision that found that an employee had been unjustifiably dismissed but was not entitled to any remedies because of 100% contributory fault, the Employment Court has again emphasized the importance of procedural fairness in dismissal cases.

The Department of Internal Affairs employed John Doe (real name suppressed) to assist a Government Minister. Mr Doe's employment contract provided that his employment could be terminated if, amongst other things, "irreconcilable differences" existed between him and the Minister.

In 1997, Mr Doe attended a Christmas party and left "probably drunk". Upon arriving home, he had a dispute with his wife. The Police were called and he was charged with assaulting a female.

He appeared in Court and pleaded not guilty to the charge. He did not apply for name suppression. The media reported the case and his link with the Minister. When Mr Doe next appeared in Court, he applied, and was granted, name suppression. The Police later withdrew the charge.

In the meantime, Mr Doe's manager became concerned that the media coverage was discrediting the Minister. He discussed the matter with Mr Doe, but did not advise him that the situation could lead to the termination of his employment. Later, Mr Doe was dismissed for having "irreconcilable differences" with the Minister.

Mr Doe brought a personal grievance against the Department, and the Employment Tribunal held that his dismissal was unjustified on the grounds that there was a total lack of procedural fairness. However, the Tribunal declined to award him any remedies at all as it considered that he had contributed to his dismissal to such an extent that he was 100% responsible for his downfall. Mr Doe appealed to the Employment Court.

The Employment Court upheld his appeal.

"there is no doubt that the publicity surrounding the events of early December would have created some embarrassment [for the Minister], but in the absence of any attempts to control the situation and any opportunity for [Mr Doe] to do so, it is impossible to conclude that there were any irreconcilable differences on any objective standard" said Judge Shaw.

Judge Shaw also held that the word "irreconcilable" presupposed that some attempt had been made to reconcile the differences between Mr Doe and the Minister, which had not happened. Furthermore, that Mr Doe did not contribute in any way to the procedural unfairness that occurred, and so he could not be 100% responsible for his dismissal. Judge Shaw awarded him $11,483 in lost wages and $5000 compensation for humiliation and distress.

This case emphasizes the importance of procedural fairness in dismissal cases. The minimum requirements are that:

More on Termination & Dismissal

An employer's rights: Surfing all the day	Driver lost license
Dealing with absent employees	Importance of procedural fairness
Must consult in redundancy dismissals	Dismissal must be procedurally fair
Misconduct discovered after dismissal	Another procedural fairness example
Dismissed for benefit fraud	Terminated before started
The danger of secret witnesses	Expired employment contract
Cannot intimidate employer	Cannot rely on police enquiry
Reasonable notice of redundancy	Contractural obligation must be met
Reinstatement and workplace democracy	Employment and criminal investigation
Attack not always good defence	Dismissal of persons in authority
Employee responds by going on offensive	Legality of secret video surveillance
ERA classifies contractor as employee	Redundancy law unchanged by ERA
Loss of use of company car	Significant difference
Resolution of criminal charges	Redundancy and changed hours
Discrimination for being non Asian	Cannot take retaliatory action
Failing to meet sales targets	Misconduct outside of work
Abuse of Internet & Email	Suicide and communication
Redundancy definition	Unjustified dismissal for pornography
Abandonment of employment

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