Drug use led to zero unjustified dismissal remedies - Employment Update Week 4, September

Cases of interest

Issuing a warning at same time as dismissal was unjustified

The fact that the employer issued a warning at the same time as dismissing an employee was one of the reasons a dismissal was found to be unjustified in a recent decision of the Employment Relations Authority.

The employer issued an employee with a final written warning over the employee’s failure to comply with procedural requirements in carrying out his role. The employer also dismissed the employee at the same time as providing the employee with the final written warning for another failure to adhere to the employer’s process requirements, which occurred soon after the first mistake the employee made.

Although the employer had classed both mistakes by the employee as serious misconduct, the Authority did not accept that was the case. The employer, therefore, could not rely upon serious misconduct to justify the dismissal. As such, the procedural problem with issuing an employee a warning at the same time as dismissing the employee was of greater importance. The dismissal was causally related to the final warning as the dismissal letter explicitly referred to actions that formed part of the final warning. The Authority criticised the issuing of a written warning at the same time as the dismissal. The Authority found that this did not allow the employee any opportunity to improve his performance or avoid repetition of this conduct within the period of the warning because he had not been warned about it.

See Allison v Centurion GSM Ltd [2019] NZERA 279.

Drug use led to zero unjustified dismissal remedies

The Employment Court recently took into account conduct discovered after dismissal to decline to award any unjustified dismissal remedies on the basis that the employee’s conduct had been so egregious that no remedies should be given.

In arriving at its decision, the Employment Court applied two important prior decisions of the Court: Salt v Fell [2008] NZCA 128 and Xtreme Dining Ltd v Dewar [2016] NZEmpC 136. Both cases are authority for the principle that an employee’s conduct can be so egregious that an employee can be entitled to no remedies despite a dismissal being otherwise technically unjustified. The Salt decision is also authority for the principle that conduct that is not discovered until after the employer has dismissed the employee can also count as conduct is so egregious as to disentitle an employee to any remedies.

In the recent decision, the employer dismissed the employee, a junior doctor, in relation to writing prescriptions for class B morphine-based medications for her partner and also finding that she misappropriated a controlled drug prescription form. The Employment Court found that the employee was unjustifiably dismissed, as procedural flaws led to inadequate consideration being given to outcomes other than dismiss, al.

Following her dismissal from employment, the employee was subject to a professional misconduct investigatio