Following on from my blog entry from last week, there are some employers who believe the current personal grievance system is not working. In particular, it appears some employers believe the system is unfairly balanced towards employees.
Is that a view you share?
If you are one of
those employers, you can perhaps take some heart from the fact that there are instances in which the Employment Relations Authority has not shied away from sending a message to employees when their cases have been unmeritorious.
This is evidenced by a recent comment from, Authority Member, Paul Montgomery in his recent decision in a case involving Mr William Gutsell, a former employee of Burgess and Crowley Civil Limited.
By way of background, the company decided to terminate Mr Gutsell's employment following its finding that he had failed to follow lawful and reasonable instructions and that those failures had resulted in damage to company and client property. The company dismissed Mr Gutsell, paying him one weeks' wages in lieu of notice.
Mr Gutsell claimed that this was an unjustified dismissal. He sought to challenge both the process followed by the company, as well as the substantive justification for the decision.
The Authority dismissed his claim and found that the employer had conducted an appropriate disciplinary process (including giving Mr Gutsell an opportunity to respond to its allegations, which he declined to take up).
It further held that the company's ultimate decision to terminate his employment was substantively justified.
The Authority directed that the parties were to try to reach agreement on costs, and if agreement could not be reached, memoranda were to be submitted within 28 days. This is reasonably standard practice.
Ultimately, the parties were unable to agree and as such a costs determination was issued, in which the Authority stated: "As was observed in the substantive determination, the applicant's evidence was simply not believable. The changes of his case surviving scrutiny by the Authority are akin to those of an egg surviving a fall from Nelson's Cathedral belltower". Now if that's not calling a spade a spade...
Digging further (pardon the pun) the Authority went on to hold: "Instead he chose to continue, attempting to bluster his way through the bulwark of tightly constructed and documented defence. His decision to proceed has consequences and I find this is a case in which costs are to follow the event."
The Authority awarded costs of $2,600. This was based on a usual award for ¾ of a day in the Authority being assessed as $2,250 and this being "modestly increased" to "compensate the respondent in part for costs relating to the evidence of staff present at key events and called to rebut the applicant's fanciful account of events".
Employers may take heart that the Authority was not backward about coming forward in its criticism of this applicant's case.
However, the company's actual costs were approximately $11,300, meaning that even with the decision clearly in its favour, and in circumstances where the Authority's view was that the case should never have been pursued, its cost recovery was only approximately 25 per cent.
Which raises a question - is calling a spade a spade, enough?
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
