Former Rotorua Lakes Council worker awarded $7500 after unjustified dismissal

Former Rotorua Lakes Council employee Richard Lyons has been awarded $7500 in lost wages. Photo / Laura Smith

A former Rotorua Lakes Council employee absent for more than half of his employment has been awarded $7500 after an unjust dismissal ruling.

Richard Lyons filed a personal grievance to the council in April 2024 after he was dismissed from his recreation planner position in January that year, an Employment Relations Authority (ERA) determination said.

The council said Lyons was dismissed after he failed to attend work “regularly and without timely communication for almost three months”.

The August 1 determination said Lyons began fulltime employment in August 2023. He chose the role having worked in a similar role before.

He admitted in hindsight the role was not suitable for him and did not have his required flexibility.

Lyons lived in Tauranga and did a daily one-hour commute to Rotorua.

Even though it was not discussed in the interview, Lyons accepted the job expecting to work from home two days per week.

When that was not an option, he described himself as “stretched thin” working fulltime in Rotorua.

Lyons also had existing health issues which sometimes impacted his ability to work.

Lyons ‘fully absent’ for almost three months

From the outset, the council expressed concerns about the frequency of Lyons’ absences and his “lack of timely communication” when absent.

Lyons was absent for more than 50% of workdays during his five-month employment, including being fully absent from November 6 to January 23.

The council also showed at least 24 workdays when Lyons had communicated his absence after his start time or not at all.

Emails and text messages demonstrated “regular and appropriate” follow-up and communication by his manager.

Lyons sent his manager two medical certificates in November and December - one unsigned and both with calculation errors.

On December 10, the council received an email from Lyons’ doctor saying his recovery timeframe was unknown and a gradual return to work would likely be required.

In January, Lyons did not return to work. He emailed the council saying he would send another medical certificate.

Lyon later told his manager he could resume work on January 23.

Former Rotorua Lakes Council employee Richard Lyons was absent for more than 50% of his scheduled workdays during five months. Photo / Andrew Warner

The council first formally raised concerns with Lyons in November, when his manager invited him to a meeting to discuss his absences. Lyons did not attend.

A further attempt to meet later that month was unsuccessful.

On December 5, Lyons attended a meeting after being told that a “potential outcome of the process may be termination of employment”.

The next day the council sent Lyons a return-to-work plan including suggested hours of work to accommodate more flexibility. The next day, Lyons provided a medical certificate to January 8.

Between January 9 and 16, Lyons did not attend work and replied with one text in reply to his manager’s texts. A medical certificate was received on January 16.

A January 17 letter sent to Lyons was to “discuss allegations concerning misconduct and serious misconduct” scheduled for January 23.

The letter gave Lyons the option to reschedule if needed or for his manager to come to Tauranga.

Lyons did not attend the meeting and emailed his manager just after the meeting started advising he would not attend but planned to be at work the next day.

The council held the meeting in Lyon’s absence and advised him of his employment termination later that day.

ERA finds dismissal ‘disproportionate’ to absences

ERA member Helen van Druten found the decision to dismiss without notice raised concerns.

The council’s code of conduct - twice provided to Lyons - listed “failure to follow standard procedures” and “unacceptable levels of absenteeism or poor timekeeping” as examples of misconduct.

The process for addressing these was outlined as a “progressive warning system” with a verbal warning, written warning, then dismissal on the “third offence”.

Despite Lyons’ alleged breaches being misconduct, the council dismissed Lyons for serious misconduct.

Van Druten said it would be “disingenuous” of the council to list examples of misconduct and outline a supportive and stepped process, “then to ignore that process”.

She said Lyons was not given any warnings prior to his dismissal and a finding of serious misconduct warranting summary dismissal was “disproportionate” to the absences and failure to communicate them.

Van Druten said the council’s obligation to consider “all relevant circumstances” at the time of dismissal and possible alternatives to dismissal was not met.

This included not exploring a “no-fault termination” on the basis of medical incapacity and giving Lyons a formal warning.

She found Lyons’ actions did not amount to serious misconduct.

Lyons sought compensation for humiliation, loss of dignity, and injury to his feelings and reimbursement of lost wages.

By terminating Lyons without notice, “he was deprived of the opportunity to improve, however unlikely given his mental health at the time”.

Lyons was awarded four weeks’ pay at his ordinary hourly rate.

The council was ordered to pay Lyons $7500 in lost wages and reimburse him $71.55 for the ERA filing fee.

Megan Wilson is a health and general news reporter for the Bay of Plenty Times and Rotorua Daily Post. She has been a journalist since 2021.