Another example of the importance of procedural fairness with dismissal

Earlier this year, the Employment Court temporarily reinstated an employee, Mr John Offord, pending the determination of his personal grievance by the Employment Tribunal. Mr Offord was dismissed for having unauthorised material on his computer. The Employment Tribunal recently issued its decision in respect of his personal grievance claim.

Mr Offord's employer, Methanex permitted employees to use its internet e-mail system for personal use provided that such use was "kept to a reasonable amount". However, the loading of unauthorised software was prohibited and employees faced disciplinary action if they were caught doing so.

Methanex, became concerned about staff downloading and installing unauthorised software, games, and pornography onto its computers. This exposed the system to computer viruses, wasted disc space and potentially rendered the company liable for breaches of copyright. It also meant that the company's computer staff had to waste time removing such material from the system.

The Company decided to have a moratorium whereby employees could report the existence of such material on their computers and have it removed without fear of disciplinary action being taken against them. The Company also made it clear to staff in a memorandum that, after the moratorium, any future incidents of unauthorised material on their computers would result in disciplinary action, and that dismissal was likely.

After the moratorium, five staff were found to have unauthorised material on their computers consisting of e-mails that ranged from inoffensive cartoons through to what the Employment Court described as "hardcore pornography". Two were given final warnings, and Mr Offord and another employee were dismissed.

Mr Offord brought a personal grievance, claiming that his dismissal was procedurally unfair and substantively unjustified. After hearing all of the evidence, the Employment Tribunal agreed. "Mr Offord can, with justification, claim that he was far from a major offender" Tribunal member, Richard Hall, said. In terms of pornography and executable files, there were other employees with more material on their computers than him who were not dismissed.

The Tribunal was also critical of the way Methanex had investigated Mr Offord's misconduct. "There was no clear articulation of [the] allegations. The core company concerns articulated at the [Tribunal] hearing were either not clearly put or lost in a clutter of other matters" Mr Hall said.

The Tribunal ordered that Mr Offord be permanently reinstated. It also awarded him $5000 compensation for humiliation and distress.

This case again illustrates the importance of procedural fairness in disciplinary matters. Employers must:

Put the specifics allegations of misconduct to the employee and warn of the likely consequences if those allegations are established;
Provide the employee with an opportunity to refute, explain or mitigate those allegations; and
Consider the employee's explanation(s) with an open mind.

In terms of the above requirements, because Methanex had not clearly articulated its concerns and had cluttered its investigative meeting with other matters, it had "not even reached first base" the Tribunal said.

More on Termination & Dismissal

An employer's rights: Surfing all the day	Driver lost license
Dealing with absent employees	Importance of procedural fairness
Must consult in redundancy dismissals	Dismissal must be procedurally fair
Misconduct discovered after dismissal	Another procedural fairness example
Dismissed for benefit fraud	Terminated before started
The danger of secret witnesses	Expired employment contract
Cannot intimidate employer	Cannot rely on police enquiry
Reasonable notice of redundancy	Contractural obligation must be met
Reinstatement and workplace democracy	Employment and criminal investigation
Attack not always good defence	Dismissal of persons in authority
Employee responds by going on offensive	Legality of secret video surveillance
ERA classifies contractor as employee	Redundancy law unchanged by ERA
Loss of use of company car	Significant difference
Resolution of criminal charges	Redundancy and changed hours
Discrimination for being non Asian	Cannot take retaliatory action
Failing to meet sales targets	Misconduct outside of work
Abuse of Internet & Email	Suicide and communication
Redundancy definition	Unjustified dismissal for pornography
Abandonment of employment

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