KEY POINTS:
A Mitre 10 accounts clerk who falsely claimed heavy rain and a slip blocking a road were to blame for her being two days' late back from holiday, was paid $4380 for unjustified dismissal.
And a caregiver at a hospital for the elderly who broke a patient's leg
by lifting the person incorrectly was paid 12 weeks' pay and $2250 compensation also for being unjustifiably dismissed for being late.
Employment experts say the examples are cases in point of employers failing to use correct processes in firing employees and then having to fork out thousands of dollars in compensation. Several recent major cases, including the Doctor X case against the Auckland District Health Board (ADHB) and the Waipareira Trust's dismissal of chief executive Reginald Ratahi, found in favour of the employee because the employer failed to use the right processes.
"Sometimes there's a rush to get things done. Employers may be concerned to get a person out of the workplace and corners occasionally get cut," said employment lawyer Philippa Muir.
In the Doctor X case, Muir said, the ADHB had made basic errors in trying to dismiss an employee who had sent images of his penis using a work computer and had sent pornography to another employee with Christmas wishes. The Employment Court allowed the doctor to be reinstated.
And in the Waipareira Trust case, Ratahi was found to have covered up the extent of an IRD debt. But because he wasn't given the chance to consult a lawyer, a breach of process, he was awarded costs.
In the case of the Mitre 10 accounts clerk, the employer didn't give the employee a chance to put her views forward and didn't inquire into problems she was having with her manager. The hospital for the elderly wrongly dismissed the caregiver for being late because she was on a final written warning.
But Muir said employers have no excuse for not complying with the law.
"They should [know the law] because the law on process and the requirements of process, letting someone have a representative present, letting them know what the meeting is about, being seen to consider all matters before making a decision, has been around for years - it's not new law."
However, changes to employment law that required an employer to do what a fair and reasonable employer in that industry would do had made it harder to dismiss bad workers.
"The Doctor X case shows that. The hospital board thought they had taken an appropriate step. But the court has ruled what a fair and reasonable employer in the health sector would do, and that makes it harder. A lot of it's being put under pedantic scrutiny. Suddenly the employee or the union or their lawyer is analysing every little step, when really it's just minor hiccups in processes, when you look at them in hindsight."
And employment lawyer Don MacKinnon told the Herald on Sunday that the changes were harder for small employers. "The law remains particularly challenging to small employers, particularly those that don't have in-house human resources or the financial ability to get legal advice. For those employers, the complexity of the law is very difficult to comply with. Borderline cases are more likely to be viewed as unjustified."
Muir said employers needed to get proper advice - especially if they were unsure about processes.
