A recent case highlights the importance of using a fair process with your employees. A worker who told her employer she would send someone round to him and the visit “wouldn’t be nice” if he did not pay her was wrongly fired by text message, the Employment Relations Authority has found. The Manager, rather than investigating what the apparent threat was intended to mean texted, no doubt in the heat of the moment, that he wanted nothing to do with his employee and that she was not “welcome here ever”.
Employers sometimes make decisions in the heat of the moment and live to regret them. Anything that impacts on an employee’s ongoing employment should not be communicated through a text. Texting between an employer and employee has become more common over the years but it should be reserved for very quick communications such as confirming start times or something straightforward. It is much safer to call than to text.
Employers should not dismiss an employee without discussing the matter with the employee first. Whilst employers often complain that the use of a fair process takes time, the case reported makes it blindingly clear that had the matter been discussed first the employer may have been on stronger ground to discuss the dismissal or could have understood that the comments made by the employee that someone would be sent round and the visit “wouldn’t be nice” was never intended as a threat but simply saying that there would be some conflict involved.
The ERA in this case found that the manager was not fair and reasonable.
In this particular case the employer was found to be in the wrong even though the employee had also been unreasonable. The employer was ordered to pay lost remuneration of $4,340.00 and compensation of $1,250.00. If the employer used a lawyer it would have had to bear its own legal costs and potentially pay a contribution to the former employee’s legal costs.
This sort of case always highlights for me that an employment lawyer should be the first call when there is a situation that you think may lead to dismissing an employee. A couple of quick phone calls could have taken the heat out of this situation. Even if the employer wanted to consider dismissing the employee a fair process could have been used which could have reached a fairer result and withstood the scrutiny of the Employment Relations Authority. This case is truly a case of spending a small amount on a lawyer at the beginning of a conflict could have saved thousands of dollars and a significant loss of management time later on.
Lousie Foley - Employment Law Specialist