Employment Issues

The Gary and Simon Case Study

 Simon is employed as a mechanic and has been working for the same employer for around six years. One day Simon arrives at work 10 minutes late and finds his employer, Gary, looking very unhappy. Gary says to Simon that he is sick and tired of Simon being late and then shouts at Simon, "Thats it - go home".
  Simon works the standard 37.5 hour week from Monday to Friday and is paid $14.50 per hour. He received a tool allowance for hours worked and minimum statutory leave entitlements as set out in the Holidays Act 2003. The employment agreement between Simon and his employer is not recorded in writing. As far as Simon can recall, Gary has never commented on the time that Simon arrives at work.

What should Simon do?

Simon believes he has been dismissed.

All employment relationships are governed by the Employment Relations Act 2000. The Act sets out that the parties to employment relationships have obligations to deal with each other in good faith. It also sets out that all employment agreements must be in writing and provides the minimum details that an employment agreement must contain – such as hours of work, place of work and rate of pay.

The Act provides a number of grounds upon which an employee can raise a personal grievance claim against an employer, including unjustified dismissal. It also stipulates time limitations within which an employee must raise his/her personal grievance claim. Outside of these limits, unless the employer agrees to extending them, the employee may make application to the Employment Relations Authority (“the Authority”) for leave to raise the claim out of time. In Simon’s case, he has 90 days from the date on which he believes he has been dismissed.

To be successful in his personal grievance claim, Simon must first establish that he has in fact been dismissed. Once this has been established, the onus then shifts to Gary who must show that there was good cause to dismiss and that Simon’s dismissal was implemented in a procedurally fair manner.
What should the employer, Gary, have done?

Putting aside the issue of whether Simon’s lateness to work justifies dismissal, there are a number of basic elements to procedural fairness in the context of managing employment relationships that Gary may have failed to carry out. These are:

• Simon should have been warned of the misconduct and given an opportunity to improve or correct his behaviour. If the misconduct is serious, Simon should also have been told that he may be dismissed if it happens again.
• Gary should have carried out a full and fair investigation of the facts before taking any action and then communicated his findings to Simon.
• Simon should have been given a real opportunity to be heard and to offer an explanation as to the alleged misconduct.
• The reasons for Simon’s dismissal should have been given to him before the dismissal was effected.

As to the question of whether Gary had good cause to dismiss Simon in these circumstances, it is unlikely that the Authority and/or the Employment Court would consider lateness to work as a justifiable basis for Simon’s dismissal. In December 2004, amendments to the Act saw the addition of a statutory test to determine whether a dismissal or other action by an employer is or was justifiable. Simply, the objective test would consider whether Gary’s actions were those of a fair and reasonable employer (in all the circumstances) at the time that Simon’s dismissal occurred.

As is often the case in employment disputes, what a court would find will depend upon the facts of the situation, what has previously happened, been said and whether any verbal warnings have been issued.

If you have any questions about employment law contact our employment law specialists Scott Fairclough or Owen Paulsen.


This article has been prepared by Cavell Leitch Law for general information only and important exceptions and other relevant factors may not have been included.  If understanding the legal area covered by this article as it affects your specific circumstances is important to you then please contact us for a proper legal opinion.