Dismissal must be procedurally fair

Peter Smythe employed Denise Jones as a caregiver at a Rest Home in New Plymouth.

In March 1995, Ms Jones suffered a back strain after one of the rest home residents punched her in the stomach. She visited her doctor who put her off work for five weeks and prescribed physiotherapy.

Unfortunately, Ms Jones did not recover as expected, and her doctor later referred her to an orthopaedic surgeon. The orthopaedic surgeon advised further rest and placed her in a back brace. By July 1995, she was certified fit for light duties.

In the meantime, however, Mr Smythe wrote to Ms Jones and advised her that unless she returned to normal duties by 26 May 1995, she would be deemed to have terminated her employment. Ms Jones was unable to comply with this ultimatum and her employment was terminated, as threatened, soon afterwards.

Ms Jones brought a personal grievance against Mr Smythe alleging that she had been unjustifiably dismissed. The Employment Tribunal upheld her claim and awarded her $1500 compensation and $900 costs.

Mr Smythe appealed to the Employment Court. The Court dismissed his appeal on the grounds that he had made inadequate attempts to enquire into and ascertain the nature of Ms Jones's injury and how long she would be off work.

"In the case of incapacity, the inquiry is into the nature and likely duration of the incapacity, its nature being relevant in the sense that alternatives to a return to full duties can also be explored. It is only when the employer is in possession of all the facts, including the medical situation, that a sensible decision can be made that is fair to both the employer and employee. [Mr Smythe] knew that [Ms Jones] would be off work for a further month from the end of May, but he knew nothing of her prospects beyond June. In fact she was partially fit to resume work soon afterwards. I agree with the Tribunal that [Mr Smythe] acted prematurely [in dismissing Ms Jones]" the Judge said.

This case serves as a reminder about the importance of procedural fairness in dismissal cases. Employers must be in possession of all the facts before deciding to dismiss regardless of whether the dismissal is for sickness, misconduct, or redundancy. In most cases, the full facts can only be uncovered by properly investigating the matter. If an employer dismisses an employee without properly investgating the matter and being in full possession of all of the facts, then the employer will held responsible for any foreseeable loss or damage suffered by the employee as Mr Smythe learned to his considerable cost.

More on Termination & Dismissal

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Must consult in redundancy dismissals	Dismissal must be procedurally fair
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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
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Attack not always good defence	Dismissal of persons in authority
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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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