See Also
Related article - attack is not always the best form of defence.

All too often, employees facing disciplinary action respond by going on the offensive by making allegations against their employer or managers. As a recent case shows, such a tactic can be disastrous as it may lead to an irretrievable breakdown in the employment relationship, providing grounds in itself for dismissal.

Power Beat International Ltd developed new inventions. It employed Per Andersen as its "R&D Support and R&D Controller.

In 1997, Power Beat had concerns about Mr Andersen's management. Its Managing Director, Mr Witehira, wrote a draft memorandum setting out the company's concerns. He instructed the company's Executive Secretary, Mr Appleton, and its in-house counsel, Ms Coupland, to meet with Mr Andersen to discuss the memo.

Mr Appleton, contrary to Mr Witehira's instructions, converted the memo into a formal written warning and gave it to Mr Andersen when they met. The warning required Mr Andersen to write a report outlining his views about the issues raised in the warning.

Mr Andersen prepared a provocative response and gave it to Mr Appleton. The response raised allegations about Mr Witehira's professional competence. It also made a number of demands, including that the warning be retracted, and concluded "failing to accede to these reasonable requests you leave me no option but to evoke all lawful resources available to me."

Mr Appleton said he was surprised with the content and tone of the response, and invited Mr Andersen to reconsider it overnight and resubmit it the next morning. Mr Andersen refused to do so.

The response was seen as an ultimatum which the company could not meet. Mr Witehira drafted a letter of dismissal and gave it to Mr Andersen. The letter cited as reasons for dismissal Mr Andersen's inability to continue working with Mr Witehira as Managing Director, and that his relationship with the company had become untenable.

After his dismissal, Mr Andersen wrote to the company's board of directors raising a personal grievance and requesting that the matter be investigated. He again made allegations against Mr Witehira, including that Mr Witehira had registered a number of patents in his own name when they in fact belonged to the company. He said that if matters were not remedied to his satisfaction, he would "use all lawful resources available . to seek relief." Mr Andersen also purchased ten shares in the company to "keep an interest" following his dismissal.

The Board did not welcome Mr Andersen's correspondence and replied, "I give you formal notice that your attempts to blackmail the company and/or its employees will not be tolerated. You are acting in a manner that is potentially damaging to yourself. For your own benefit you would well be advised to withdraw all such threats and apologise forthwith."

Mr Andersen filed an unjustified dismissal claim with the Employment Tribunal. The Tribunal upheld his claim but said "I find this is one of those rare cases where there was an irreconcilable breakdown of the employment relationship such that dismissal was inevitable. It is only the couple of procedural deficiencies that I have described that restrain me from finding that the decision was justified." The "procedural deficiencies" concerned the conversion of Mr Witehira's memo into a formal written warning, which was issued without giving Mr Andersen an opportunity to respond, and failing to give him an opportunity to discuss his response before terminating his employment.

It awarded Mr Andersen 3 months lost wages plus $3000 compensation for humiliation and distress, both of which were reduced by 60 per cent for contributory fault.

Both the company and Mr Andersen appealed. The Employment Court upheld the Tribunal's finding that Mr Andersen's dismissal was unjustified. "The wrongful issue of the warning effectively precipitated Mr Andersen's response. I agree with the Tribunal's finding that his response, especially in light of the subsequent counseling he received from Mr Appleton, went beyond the bounds of what was reasonable and would have given the employer cause to consider that the relationship had irretrievably broken down. Mr Andersen's response, if not resiled from, would have entitled Mr Witehira to assume that the employment relationship was at an end. That assumption could only have been properly made once Mr Witehira had investigated the matter. Justice and fairness required that such an investigation should have included the opportunity for Mr Andersen to respond once he had been informed by Mr Witehira that Mr Witehira had never intended a formal warning procedure to be initiated in the first place .. The dismissal would have been substantively justified if Mr Andersen had failed to resile from the allegations made in his response after having been given a proper opportunity to do so by Mr Witehira and once in command of the full facts that the warning was never intended. That opportunity was never afforded" Judge Barry Travis said.

The Employment Court upheld the Tribunal's lost wages and compensation awards, but awarded Mr Andersen and additional $240 for the loss of use of his company car which the Tribunal had omitted to consider.