All in a day's work

Employment lawyer Bridget Smith blogs on workplace and HR issues. Bridget is a senior associate at law firm Minter Ellison Rudd Watts.

All in a day's work: Hello, it's trouble calling...

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The Golden Globes were awarded last week and apparently host Ricky Gervais, and his acerbic observations of many film and television stars, were not well received by the American audience.

I heard it described on Breakfast television as the British and Americans having different senses of humour - and in this case, the Americans apparently didn't 'get' his intended jest at their expense. Or at least, reportedly failed to see the funny side.

Perhaps Jay Leno put it best when he said: "Ricky, that's not the way we do things in America. Yes we say those things, but we say them behind your back, not to your face."

The Employment Relations Authority has recently been considering a similar issue - whether Steelpipe Limited was justified in dismissing its senior sales engineer, Mr Russell Steel, after he accidentally called his Manager while driving in the car with a client.

It wasn't the fact of the call that was the problem, more the fact that during the call, Mr Steel apparently made inappropriate comments to the client he was travelling with, criticizing one of his managers, criticising the quality of the company's services and products, and suggesting how a dispute between the company and the client might be resolved in a way that the company considered was less favourable than those terms it had been seeking.

After hearing from Mr Steel, who had been employed by the company for 39 years without incident, the company decided it could no longer have trust and confidence in Mr Steel and dismissed him for serious misconduct.

Mr Steel challenged the justification for the decision to dismiss and in the first instance sought interim reinstatement.

Interim reinstatement recognises that there is a delay between a decision to dismiss an Authority investigation meeting, and the resulting decision on the issue. It also recognises, for example, that an employee's reputation may be damaged in that period, even if they are ultimately successful.

Interim reinstatement is therefore where an employee can seek reinstatement to their job, pending the Authority's decision of the substantive case - whether there was a justified dismissal or not.

Briefly, in order to succeed in their application for interim reinstatement the applicant must prove: they have an arguable case (in this case, both that dismissal is unjustified and that reinstatement would be likely to be ordered), that the balance of convenience favours interim reinstatement (this is a balancing exercise - who will be inconvenienced more by the reinstatement or non reinstatement), where does the justice of the case lie, and finally whether damages would ultimately be an adequate remedy (if they would, interim reinstatement is unlikely).

In this case, the Authority declined Mr Steel's application for reinstatement but did make some telling comments along the way.

Those included that as Mr Steel accepted making the comments (describing them as 'venting' to a client he had known for 13 years), they were not consistent with faithful service.

However, the Authority held that Mr Steel has an arguable case that a single established instance of apparent infidelity, through careless talk, may not justify a conclusion of absolute loss of trust and confidence, against a background of long service and previous satisfactory working relationships.

That said, the Authority did also note that on an interim basis, there were two important weaknesses in Mr Steel's case: the seriousness of the alleged misconduct and the practicability of reinstatement in the long term.

So, what do you think? Is once enough or should employees be given a second chance? What would it take to destroy the relationship of trust and confidence in your mind?

I often think it is easier to try and stand in the shoes of both parties - if you were the employee, would you genuinely think you deserved a second chance? And if you were the employer - could you trust an employee who had done that?


Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts.

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