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The tweet you don't want to see ...

Written by Alison Maelzer on March 19th, 2018.

Several days ago, President Trump announced to 49 millions followers on Twitter that he was replacing Secretary of State Rex Tillerson with a new appointment, former CIA Director Mike Pompeo.

Reports in the media have stated that Mr Tillerson became aware of his dismissal by way of the tweet, and that President Trump had called him around 3 hours after the tweet had appeared.

Finding out you’ve been fired from your high profile job via the internet seems insensitive, to say the least. Of course, US employment law is a different beast, but if Mr Trump had wanted to dismiss Mr Tillerson in NZ, what should he have done?

Firstly, there would have needed to be a substantive reason for the dismissal. This could have been performance or misconduct related. If there were performance, or lower level misconduct issues, these concerns should have been the subject of graduated warning process, allowing an opportunity to improve, before any dismissal was contemplated. Even if there had been serious misconduct justifying summary dismissal (for example, acts of insubordination such as publically calling the boss a ‘moron’), the employer would still need to follow a fair process.

The test for justification in New Zealand is whether the employer’s actions (e.g. dismissing someone) and how the employer acted (i.e. how they went about the dismissal) were what a fair and reasonable employer could have done in all the circumstances. At a bare minimum, the employer will need to comply with natural justice requirements which requires the employer to:
 
  • Investigate the concerns or allegations (to make sure they have some basis or credence);
  • Put the allegations or concerns to the employee (with all the relevant information);
  • Give the employee a reasonable opportunity to respond to those concerns; and
  • Genuinely consider the employee’s response before taking action.
If dismissal is contemplated, the employer needs to make that clear to the employee, and allow the employee to provide comment or suggested alternatives, to the dismissal.

Judging from the media reports (and cognisant of the ever-present danger of “Fake News”) President Trump’s actions look to have fallen far short of the ‘reasonable employer’ test in New Zealand and are far closer to his infamous “you’re fired” in his ‘The Apprentice’ appearances. It appears that the allegations (whatever they were) were not put to Mr Tillerson, he was not given an opportunity to respond, and the employer did not consider the employee’s response before taking action. Notifying the public of the dismissal, before the employee, is very unlikely to meet the ‘fair and reasonable employer’ test in New Zealand, and raises interesting privacy issues.

We shouldn’t judge an American situation by New Zealand standards, but what we can do, is to realise that, in New Zealand employment law at least, both justification and process matter.

If you need help with an employment process, please give us a call. We’re happy to help you avoid any comparisons with Mr Trump.
 
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