November 7, 2007

“They cut my hours and I lost it”

Barbara

Background
Barbara had worked for a cleaning company for more than a year. She had fallen out with Jack who had been her usual co worker on small jobs. He had complained to the boss about her and she had complained to the boss about him. The boss had told them both to “grow up”. The boss had spoken to Barbara a few times about the standard of her work. There had been no formal warnings or disciplinary procedures. The boss now usually rostered Jack into a different team from Barbara.

Trouble
The boss took a holiday, leaving the Assistant Manager in charge. She sent Barbara and Jack to a job together. They argued, and Jack walked out with the job half finished. Barbara was upset. She finished the job (not very well) and went home and wrote a letter, telling the Assistant Manager what Jack had done and that she didn’t want to work with Jack any more.

More Trouble
The Assistant Manager didn’t reply, but when the next roster went up the following day, Barbara had her hours reduced from 38 to 18. She was very worried about her ability to meet her commitments and went to work that evening still upset. Jack was also on site, and began to taunt Barbara about what had happened. Their interaction escalated. Barbara “lost it” and began to shout and swear. So did Jack. They were still shouting at each other in the site car park when the Assistant Manager arrived with her boyfriend who was an off duty security guard. She told Barbara that she was suspended, and must leave the site immediately or she would be arrested for trespass. The Assistant Manager and the boyfriend then bundled Barbara into the back of their car and drove her back to the Company Depot. They demanded all the keys and Company property in Barbara’s possession, and as Barbara left, the Assistant Manager said “I have got enough on you to sack you now”

Call an Advocate
Barbara went home and called a family friend, who rang the Assistant Manager. The Assistant Manager admitted she didn’t know how to handle the situation, but said that she would send Barbara an email about “being dismissed if she didn’t pull her head in”.

Next morning the email arrived. It had some, but not all of the things a disciplinary notice should have.
It summoned Barbara to a meeting the following day (notice too short), it told Barbara that she might be sacked and that she could bring a support person or a representative.
It made reference to the incident the previous evening, but also referred to “unsatisfactory work performance”, and “poor staff relations” without specifying any details (not enough information to make an adequate response).
It also made an allegation of drug use on the job (should have been specific).

The Family friend rang me, I rang the Assistant Manager to say that we could not meet until the next week, and followed up with an email and letter attached pointing out the deficiencies in her process so far, telling her that we were raising them at a level short of a Personal Grievance, and suggesting that we meet and talk. Then I arranged to meet Barbara.

Barbara was very upset. I quizzed her about the allegations made in the Assistant Manager’s letter. She denied drug use, but admitted that Jack was not the only workmate she didn’t get along with. She acknowledged that the boss had spoken to her about her work a couple of times, but was unsure about what the Assistant Manager meant by “unsatisfactory work performance”.

By Monday, the Assistant Manager had decided she was in trouble and had consulted a firm of Employment Consultants who usually provide services to employers. They wrote us a careful letter, summoning Barbara to a disciplinary meeting later in the week, setting out some specific areas in which Barbara’s performance was unsatisfactory, explaining that the incident “on site” the previous week could amount to serious misconduct, and giving all the usual cautions.

By now Barbara had “had a gutsful of the bastards”. I thought it was unlikely that she was going to be happy back on the job, so we agreed that she would look for a milking job, and that I would try to negotiate an exit package. Barbara had more success than I did. She had an offer of a job very quickly. I exchanged phone calls, emails, and letters with the employer’s Advocate to try for an exit package that would meet Barbara’s costs and give her some money over to relocate to a new job. They were playing hard ball. The employer’s advocate didn’t want to know, and made an offer of settlement that didn’t even cover my fees, insisting that if Barbara did not accept the settlement offered, the disciplinary meeting would go ahead as scheduled.

Even though Barbara had “had a gutsful”, she didn’t feel she had been treated fairly. She wanted to fight for a fair settlement.

Legal Issues
Barbara had several grounds for a Personal Grievance.
Her employer had cut her hours without consultation immediately after receiving a complaint from her and without investigating the rights and wrongs of the matter. An arguable case for unjustified disadvantage.
Her employer had suspended her without consultation and ordered her off the site without giving her any opportunity to have input to that decision. A clear case for unjustified disadvantage.
Her employer had told her that she had enough on her to sack her. Arguable evidence of bias in any subsequent disciplinary action – unjustified disadvantage (and unjustified dismissal if dismissed).
Her employer had humiliated her by bundling her into the back of the car and taking the keys and Company property away without consultation or explanation – unjustified disadvantage.
The disciplinary notice originally issued was deficient in some respects – unjustified disadvantage (and unjustified dismissal if dismissed)

Next Steps
Since we were going to the disciplinary meeting, and since Barbara’s behavior at the work site had certainly amounted to misconduct, it seemed important to bring Jack’s equally bad behavior into consideration – not because Barbara wanted Jack sacked, but because any failure on the employer’s part to deal with Jack’s behavior on a similar basis would tend to show bias. I wrote to the Employer’s representative, complaining about Jack’s behavior, and notifying a PG on all the grounds outlined above.

Then we went to the disciplinary meeting at the Employer’s representative’s premises. They continued to play hard ball. I started by making reference to the suspension without consultation, the evidence of bias, and the deficiencies in the first disciplinary notice.

The employer’s representative countered that a discussion of suspension would have been unreasonable in the circumstances, that any bias on the Assistant Manager’s part was countered by the fact that they were conducting the investigation, and that any deficiencies in the disciplinary notice had been remedied by their letter.

We then went through the careful letter they had written, point by point. Several important issues emerged. The employer claimed they had been unhappy with Barbara for some time, and when I asked for a specific, the Assistant Manager pulled out a complaint about Barbara she had received from a client more than two months previously.

A bad mistake! It has been clearly established in the Court of Appeal, that an employer cannot in good faith “store up” matters and then later hit the employee with them. If there is a problem, or cause for disciplinary action, the employer must deal with it as soon as is reasonably practicable. The employer’s representative didn’t turn a hair, but continued through their letter.

Then the Assistant Manager produced letters about Barbara from two other staff complaining about her work and behavior. She had not provided them before the meeting in time for Barbara (and me) to consider them and make a response.

Another bad mistake! For a disciplinary process to be fair, the parties must not do anything to mislead each other, and must provide all the information they have available.

I made vigorous protests about these mistakes, and at the end of the meeting, before the Assistant Manager and her representative withdrew to consider whether Barbara was guilty of the misconduct they had specified, we had a “without prejudice” conversation about how to settle the matter.

I put it to them that whatever Barbara had or hadn’t done and no matter whose fault it was, there was no way she could go on working there. It was obvious that they didn’t want her and she didn’t want to be there. I said that she had multiple grounds for a PG for unjustified disadvantage, and that if they sacked her there would also be a PG for unjustified dismissal. I suggested that the money to fight these PGs would be better spent on an exit package for Barbara.

We settled on $3000 as a tax free payment under s123 of the Employment Relations Act, with an immediate resignation and payment of outstanding wages and holiday pay. I hope Barbara is getting on better at her milking job