When it comes to terminating an employee’s contract, it is crucial to follow the proper procedures to ensure a fair dismissal. Failure to do so may result in an “unjustified dismissal”.
This was precisely the case in the recent employment dispute, Dowling v Sims, where Mr. Dowling, a dairy assistant on a West Coast farm, was unjustifiably dismissed by his employer. The Employment Relations Authority (ERA) found that the employer failed to meet the minimum requirements of fair process. This article examines the details of the case and underscores the importance of adhering to proper dismissal procedures.
Background:
Initially, the employment relationship was positive. However, tensions escalated when Mr. Sims became concerned about Mr. Dowling’s plant wash procedure. The Sims formally addressed this issue through a letter, inviting Mr. Dowling to a meeting to discuss their concerns. Mr. Dowling responded to the letter by accusing the Sims of predetermined dismissal and expressing his frustrations through multiple emails and text messages. This led to a breakdown in the working relationship.
On 1 February 2022, tensions reached a tipping point between Mr. Sims and Mr. Dowling. During their conversation Mr. Dowling purposefully antagonized Mr. Sims (attempting to get him to “blow out”) – Mr. Dowling later noted at the hearing that he was standing up for himself, however accepted that he felt somewhat apologetic and was not entirely proud of his behaviour. Mr. Dowling was eventually told by Mr. Sims to “leave,” “go home,” and that he was “fired“.
On 4 February 2022 the Sims recorded the reasoning for dismissal in a letter to Mr. Dowling, the primary reason being his conduct after receiving the PWP letter and meeting invitation. It was alleged, among other things, that this amounted to serious misconduct and ultimately destroyed the trust and confidence the employer held in him.
Fairness and Reasonableness:
The Sims accepted that the process followed could have been better, but remained firm in their view that Mr. Dowling had acted in a way which justified the decision to dismiss.
The ERA disagreed – finding it unreasonable to take the position that Mr. Dowling had been so obstructive in the 1 February altercation that dismissal in the manner it occurred was justified.
To determine the fairness and reasonableness of the dismissal the ERA evaluated the relevant circumstances and assessed whether the employer followed a fair process in accordance with Section 103A of the Employment Relations Act. The ERA concluded that the dismissal was unjustified – the process was deficient, and there was still an opportunity to follow a reasonable process even after the 1 February incident, for example giving Mr. Dowling a cooling-off period, suggesting a paid suspension in the interim, or arranging an online meeting with representation if in-person discussions were not preferred.
The ERA determined that none of the requirements of section 103A had been met, and these deficiencies were not minor. It therefore held the dismissal was unjustified.
Conclusion:
Dowling v Sims emphasises the importance of following proper procedures during the dismissal process. It underscores the need for employers to ensure that appropriate processes are in place when dismissing an employee, even where the behaviour seems egregious and overt. Failing to adhere to these procedures can render the dismissal unjustified. Employers should familiarise themselves with relevant employment laws and seek professional advice to ensure compliance with the correct procedures. Similarly, employees who believe they have been unfairly dismissed should be aware of their rights and seek appropriate legal guidance to protect their interests.
If you have any questions about the dismissal of an employee or if you believe that you have been unfairly dismissed, please get in touch with the Watermark Team directly. We are happy to assist you.
09 532 8211