Poor performance requires a series of warnings and a final written warning to be issued before dismissal on notice. Pic Getty.
It's not easy to get fired in New Zealand, but it does happen. To be lawfully "fired" and marched off the job, aka "summarily dismissed", you need to have done something that is viewed as "serious misconduct". That is a high threshold.
Even then there are many shades of grey in employment law, says Jennifer Mills, head of practice at Jennifer Mills & Associates.
The subtlety in the law keeps lawyers, the Employment Relations Authority and the Employment Court busy.
There may be, for example, a fine line between watching pornography on your computer during work time and watching illegal pornography. There are cases where the public may consider the behaviour is abhorrent, but the courts may not view the individual circumstances of case as constituting serious misconduct that warrants summary dismissal.
When it comes to "getting fired", there are three broad categories and the differences are important. The three are: performance issues, misconduct, and serious misconduct.
If your performance isn't up to scratch then you can eventually be "fired". But long gone are the days of bosses saying "on yer bike mate" for a little indiscretion. Such exits need to follow a process and stick to the letter of the law.
Poor performance requires a series of warnings and a final written warning to be issued before dismissal on notice. Those warnings need to be very carefully worded as well, says Mills.
In the case of an employee, for example, who had failed repeatedly to complete board papers on time, says Mills, the warning might be worded more generally — such as failing to comply with company polices, including not completing those board papers on time. That way the employer may be able to use other company policy breaches as a reason for issuing a warning in the future, but rely on previously issued warnings.
The next level of misdemeanour in the workplace that could leave to ultimate firing is misconduct, which shouldn't be confused with serious misconduct.
Misconduct is not a reason for summary dismissal, says Mills. In the case of misconduct, warnings need to be issued and you would get a final warning if you committed the offence again.
Examples of misconduct include using inappropriate language, lower level internet misuse, minor instances of failing to follow employers' reasonable and lawful instructions, minor breaches of the employment agreement such as wearing inappropriate clothing, and lateness.
Serious misconduct requires a higher threshold. Some of the serious misconduct offences that might reach the threshold required in the law include:
●Telling lies in your job application, where the lie is material to the position. For example, saying you have the LLB qualification when you don't for a law job could be serious misconduct, says Mills. But writing that you had an A+ when you only had a B+ average may not get over the threshold, depending on the circumstances.
●Sexual harassment of a sufficient gravity, bullying or assaulting co-workers is sometimes serious enough for summary dismissal.
●Complaining about your employer which brings the employer into disrepute or which could damage or undermine the reputation of the organisation.
●Sharing truly confidential company secrets with competitors may fit the bill.
●The use of illegal drugs at work.
●Dishonesty offences sometimes fall into the serious misconduct category. However the accusation needs to be worded carefully. "Misappropriation", for example, might be a better word than "theft", simply because intention needs to be proven for an allegation of theft.
●Some breaches of company policies could be viewed as serious misconduct. Viewing child pornography in the workplace could be considered to be serious misconduct.
●Some misuse of social media inside or outside work hours could also be viewed as serious misconduct.
●Behaviour that endangers the health and safety of the employee or others can be reason for summary dismissal. High jinks, for example, in a forklift truck endangering yourself or others could be viewed as serious misconduct by the courts.
In the case of serious misconduct employers must weigh up all the aggravating and mitigating features before summarily dismissing the employee. As well as the facts of the case they must consider employer policy, the level of initial and ongoing training the employee has received and a number of matters personal to the employee including: length of service, the employee's record, his or her remorse, whether he or she understood the consequences of the behaviour and whether the person is the primary provider for the family.
"All these factors need to be considered before you can summarily dismiss an employee," says Mills.
It's serious misconduct that usually hits the headlines. In one oft-cited case Kidicorp manager Rachel Blylevens was dismissed by her employer for liking posts of others that were derogatory of her employer as well as a post of her own.
The ERA found Blylevens' employer's response had been textbook. She was given the opportunity to acknowledge she was wrong and was remorseful, the company was thorough in its investigation, had well written employment agreements and a social networking policy that warned employees could be disciplined for inappropriate actions.
Social media does lead to the downfall of an increasing number of employees. The Employment Relations Authority heard a case where Bruce Taiapa called in sick after not being given sufficient days off to attend a waka ama championship. However his boss's attention was drawn to pictures on Facebook of Taiapa at the waka ama championship and he was summarily dismissed for misusing his sick leave and misleading his employer.
An employer can't specify where employees recuperate from illness but can question activities during sick leave that don't appear consistent with recuperation.
Employers need to be aware of unfair dismissal. If the process of dismissal hasn't been handled properly or the reason isn't valid, an employee can raise a personal grievance with the employer and subsequently the courts.