The news media has a tendency to report cases where workers are awarded monetary payouts, yet have acted in a morally dubious way themselves.
A case this year that gathered some attention was that of Cazna Waaka, a Wellington bus driver who told her boss to stick the job up her 'f...ing arse' after her manager reprimanded Ms Waaka for bringing her children to work and leaving them unattended in a running bus.
The case has an irony to it which drew public attention and possibly even resentment from anyone who has employed a worker before.
One would think the employer's gripe was fair. Bringing your children to a potentially dangerous workplace is at least questionable. Leaving them unattended while the bus is still running could be serious misconduct. Further, it would seem quite reasonable to have a low tolerance toward an employee that uses offensive language and is insubordinate.
Yet it was reported the Employment Relations Authority awarded Ms Waaka $10,000 when her response to her boss was to tell her to stick the job where the sun don't shine.
The account is correct and there are plenty of other cases too. The authority determined that Ms Waaka's language was 'extremely inappropriate', but also that the employer had breached its duties by failing to follow a fair process.
Two wrongs do not make a right and the employer had to pay the consequence of its wrongs - literally. The authority rejected the employer's claim that Ms Waaka's language and behaviour had repudiated the employment agreement and shown she had no intention to be bound by it.
So how did Ms Waaka get away with it? The short answer is really, that she did not and her poor behaviour prejudiced her own case. On her day in court, Ms Wakaa asked for her job back. The authority refused to make that order, because Ms Waaka's behaviour ruined any chance of a future with the manager. On top of that, she only received 50 per cent of the award for unjustified dismissal because she contributed to the situation. This reduced her payout by $4000.
So what lessons can employers learn from this? Here are five tips:
1. The courts are not naive. It is accepted that different language is used in different sections of the community.
2. However, language that threatens, provokes, insults, harasses, discriminates, insubordinates or bullies other people in the workplace, including you, is unlikely to ever be acceptable.
3. You should make it clear what standards of behaviour and language are expected. If there are no clear rules, a worker telling you to 'f..ck off' may well fall short of serious misconduct.
4. Where a conversation with a worker becomes heated, the best thing you can do is organise some time-out to let everyone settle down.
5. Regardless of what your worker has done or said, you must follow a fair process when following disciplinary procedures.
Also, be wary of suspending an employee without a fair reason, or without first following a fair process. This includes proposing the suspension, seeking the employee's comments and considering those comments.