Fired fair and square: what this case means for employers

Terminating an employee may seem straightforward, especially if the employment contract specifies that written notice is sufficient. Or, perhaps the employee’s actions appear so egregious that termination feels justified. However, it’s not that simple.

Employer responsibilities extend beyond the terms of a contract. The Employment Relations Act 2000 (the Act) sets out clear legal obligations that must be followed to ensure dismissals are fair and lawful. In this article, we’ll discuss Sahil v First Security Guard Services Limited –  a recent case where an employer successfully defended a claim of unjustified dismissal, and delve into how they won.

The facts of the case

The employee, a Shift Manager (also known as an Alpha Six employee), was responsible for supervising security guards, ensuring health and safety compliance, conducting site checks (15-30 minutes each), and completing reports at the end of each shift.

In November and December 2023, reminders about these duties, including absence management, were issued, followed by a formal and verbal reminder in January 2024. And previously, in August 2023, Alpha Six employees were reminded that their roles couldn’t be conducted remotely and weren’t a working-from-home role.

Despite this, the employee failed to meet reporting standards and deadlines. The employee was also completing far fewer site visits than other Alpha Six employees. GPS tracking in the company vehicle confirmed that the employee was finishing work much earlier than required. Further, the employee was only conducting five site visits a shift while other Alpha Six employees were visiting 16 sites per shift.

Investigating performance issues

The employer invited the employee to an investigation meeting to discuss these concerns and to hear the employee’s side. At the meeting, the employee stated that he was at medical appointments, would watch movies during work hours (one time he watched movies for five hours) and he also claimed that his previous manager said 4-5 site visits was enough, after which he could do whatever he wanted as long as there were no client complaints. Further to that, the employee stated that he had a work-from-home role.

The employer then checked with all necessary managers and witnesses to confirm whether what the employee was claiming was true. Claims regarding being allowed to attend medical appointments weren’t supported. And evidence supported that Alpha Six roles weren’t roles that could be performed remotely.

Disciplinary process and dismissal

After investigating, the employer decided to invite the employee to a disciplinary meeting and clearly set out allegations and included all evidence in relation to the allegations as well as investigation material. During this meeting, the employer found more concerning information. Namely, that as it was more comfortable, he spent most of one day at a friend’s house to watch their friend’s mother, and that he thought he was following expectations in the Code of Conduct. Additionally, the employee preferred to sit in their personal car to watch movies and eat instead of sitting in the office 50 meters away, completing work, as well as failing to reach an agreement to use paid work time to attend multiple medical appointments. Further, the employee used the company car for his own personal purposes without authorisation.

Consequently, the employer felt the employee had damaged the trust and confidence in the relationship. A tentative view of summary dismissal was provided to the employee and feedback was sought. A subsequent apology wasn’t enough to change the view, and summary dismissal was confirmed following the investigation into alleged misuse of scheduled work time, failure to follow instructions, and use of a company vehicle without authorisation.

The Employment Relations Authority’s finding

The Employment Agreement stated that failing to perform duties or undermining trust and confidence could be considered serious misconduct, warranting dismissal. For this reason, and the reason below, the Authority found the employer met good faith requirements and conducted a thorough investigation by:

• Clearly detailing allegations and providing relevant documents.
• Offering the employee the option of a support person for the investigation meeting, both in the invitation and at the meeting.
• Allowing the employee to explain their side during meetings.
• Investigating the employee’s explanations and sharing the findings in the disciplinary invitation letter.
• Ensuring the employee had representation at the disciplinary meeting and further opportunities to explain.
• Providing a tentative decision and seeking additional feedback, with the employee again having representation.

The Authority concluded the dismissal was justified and the employer followed a fair process. 

The employee also claimed unjustified disadvantage under section 103(1)(b) of the Act, which requires:

1. a) an unjustifiable action by the employer; and
2. b) that this action negatively affected the employee’s terms and conditions of employment.

To succeed, the employee needed to prove the employer’s actions were unjustifiable and caused a disadvantage. However, the Authority found the employer conducted a fair investigation and disciplinary process, meaning there was no disadvantage to the employee’s employment. 

What does the law say?

Unjustified dismissal

The Authority explained that for a dismissal to be justified, the employer must act fairly both in substance and procedure, as outlined in section 103A of the Act. This means the decision must be one a fair and reasonable employer would make in the circumstances.

Under section 103A(3), the employer must:

1. a) Properly investigate the allegations against the employee.
2. b) Clearly communicate their concerns to the employee.
3. c) Give the employee a fair chance to respond.
4. d) Genuinely consider the employee’s explanation before making a decision.

Good faith

Under the Employment Relations Act 2000, employers and employees are required to act in good faith under section 4 of the Act. According to section 4(1A)(c), if an employer is considering a decision likely to negatively impact an employee’s employment, they must:

1. i) Provide the employee with relevant information about the decision.
2. ii) Allow the employee an opportunity to comment on the information before making a decision.

What the employer got right

In this case, the employer did everything right. They investigated concerns, put those concerns to the employee and allowed the employee the opportunity to respond before making a decision. They had adequate documentation already in place, which formed the evidence that supported a fair process; they ensured the employee was aware of their opportunity to representation, and they had adequate record keeping during all processes.

How can Citation HR help?

In a situation where an employee is ‘taking the mickey’, it’s incredibly important to keep your cool and ensure the process is followed. We know how frustrating and stressful it can be to manage conduct issues. To reduce the risks associated with compliance requirements, Citation HR can support you with our online checklists and resources.

If any of the information in this article has raised any questions or concerns about employee conduct, disciplinary processes, or if you have another workplace matter you need assistance with, we’re offering a confidential chat with our team. Arrange a call today.