 In my last column, I reported the case of
Power Beat International Ltd v Andersen where the Employment Court stated that employees who responded to disciplinary action by making allegations against their employer could be justifiably dismissed if the response
was unreasonable and caused an irretrievable breakdown in the employment relationship. In a recent case, the Employment Court dealt with the same issue, only this time
the employee made the allegations in the context of a personal grievance claim. This fact caused the Court to come to a different conclusion.
In February 1998, Keith Burns submitted a personal grievance to his employer, the Inland Revenue Department. In the course of doing so, he alleged that the Chief Executive, in delegating the task of responding to his grievance, acted
dishonestly and without integrity. In April 1998, the Chief Executive wrote to Mr Burns denying the allegations. His letter further stated
"As you will be aware, I am your employer. It is an essential aspect of the relationship between an employer and an employee that they have
trust and confidence in each other. Your allegations suggest that you no longer have trust and confidence in me as your employer and I regard your allegations
as having seriously undermined my trust and confidence in you as an employee." The letter went on to give Mr Burns an ultimatum to withdraw his allegations or be dismissed.
Mr Burns submitted another personal grievance regarding the ultimatum given to him.
The Employment Tribunal considered that the case raised an important question of law, namely, whether it was open for an employer to dismiss or otherwise discipline an employee in reliance on anything said or written by the employee in
the course of pursuing a personal grievance. The Tribunal referred the matter to the Employment Court to decide this question.
In the Employment Court, Mr Burns argued that he had a statutory right to submit a personal grievance, and that Parliament could not have intended that an employer should be able to interfere with that right in any way.
Inland Revenue argued that the statutory right to submit a grievance did not provide a charter for an employee, who was not acting in good faith, to abuse the
employer. Doing so was destructive of the employment relationship, which is based on mutual trust and confidence, and was grounds for dismissal.
| The Employment Court disagreed.
"It cannot be permissible for an employer to enquire into a grievant's motivation for exercising a statutory right and, upon its
own conclusion that the motivation was in breach of good faith, seek to justify disciplinary action taken on the basis of what was alleged in support of the grievance.
To allow such action would be to inhibit the free exercise of a statutory right or to punish an employee for pursuing valuable rights" the Court said.
| | The difference between this case and the Andersen case reported in my last column is that in this case Mr Burns attacked his employer in the course of
submitting a personal grievance whereas Mr Andersen did not. Mr Burns was protected from disciplinary action because of the fact that he was pursuing his statutory rights.
| 
An employer's rights: Surfing all the day