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Our German Desk We are quite often asked what to do if an employee just won’t turn up to a disciplinary meeting. Do you have to delay forever? Can you box on and hold the meeting without the employee in question? And then what?
This issue has recently been the subject of an Employment Relations Authority determination in Wilson v Pet Stay Limited. The determination confirms that employers do not have to wait forever, and, in appropriate circumstances, can make a decision without the employee attending a meeting.
The Pet Stay case involved an employee (Sandra Wilson) of a boarding kennel in Feilding. The sole Director of Pet Stay, Susan Flavin, became concerned about communication issues between herself and Ms Wilson. Some letters were exchanged in late 2011 and early 2012 and both parties agreed to try harder.
In February 2012, Ms Wilson’s hours of work became an issue, and she and Ms Flavin disagreed over what hours/days Ms Wilson should be rostered to work. In March, Ms Wilson took part in a radio interview, in which she made comments about how unhappy she was with her job and the management. She did not mention the name of her employer. There was also an incident in March where Ms Wilson allegedly yelled and threatened to go to the SPCA and Department of Labour.
Ms Wilson was sent a letter on 26 March 2012, explaining the employer’s concerns about a number of matters – the radio interview, her alleged criticism of the business, dirty cages, and further communication issues. Ms Wilson was requested to attend a disciplinary meeting. Ms Wilson’s representative asked for more detail about the allegations, and suggested that the parties go to mediation. There was then some to-ing and fro-ing about a possible time for a disciplinary meeting, and the further information that Ms Wilson wanted.
No disciplinary meeting took place, and Ms Flavin wrote to Ms Wilson, advising her that she needed to attend the meeting, set a date, and told her that if she refused to meet, a decision would be made on the information the employer currently held. There was then some further correspondence between the respective representatives (who by this stage, had been engaged by both the parties) which resulted in further directions to attend a disciplinary meeting, and a further warning that failing to do so would result in a decision being made in her absence. Ms Wilson continued to insist that she would not attend until she had further clarification about the allegations.
By 10 April (when Ms Wilson and her representative failed to attend the disciplinary meeting rescheduled for the fourth time), Ms Flavin made the decision to dismiss Ms Wilson. A personal grievance was duly raised, and the matter proceeded to the Employment Relations Authority.
The Authority found that “[t]he applicant’s non attendance at a required meeting was fatal. This is because she was put on notice that a decision would be made based on the information available to the employer if she did not attend. Her failure to attend resulted in her employer making a decision. The employer made an entirely justifiable decision to proceed and to dismiss Ms Wilson”.
In reaching this conclusion, the Authority considered that Ms Wilson had been adequately informed of the allegations against her (or could have sought further clarification at the meeting) and that Ms Wilson was very much on notice that if she failed to attend the meeting, then a decision (which could include termination) may be made. The Authority found that it was unreasonable for Ms Wilson to put preconditions on the meeting taking place. Accordingly, the employer’s process had not been defective. Rather, it had tried to conduct an investigation when Ms Wilson was asked to attend a meeting. The employer’s concerns were put to Ms Wilson and she had an opportunity to comment and provide her input.
Furthermore, the employer’s concerns had substance, and Ms Flavin herself was a witness to some of them.
In all of these circumstances, dismissal was a course of action open to a fair and reasonable employer.
In our view
It is not uncommon for employees (and employees’ representatives!) to try and frustrate the process by not turning up to meetings or trying to set preconditions on attendance. As exemplified by the Pet Stay case, this is a risky strategy for an employee to pursue. The key (as always) is reasonableness. If the employer’s request to attend a disciplinary meeting is reasonable (including being reasonably timed and located, the employee having a reasonable opportunity to take advice or secure representation, and the employee having been provided with sufficient information) it will almost always be unreasonable for the employee to refuse to attend.
If the employer wants to make a decision without the employee having given his or her side of the story, it is imperative that the employee knows this may happen. As a matter of practicality and safety, we would usually give at least one, and usually two warnings that the employer intended to make a decision based on the information available, and without the employee’s input.
As ever, what is reasonable depends on the circumstances and this case should certainly not be read as giving carte blanche for employers to rush through a process or deny employees an opportunity to provide their responses. However, in some cases, the employer will be left with little option, and in those cases, the law will support the employer.
If you are proposing a disciplinary process, or are involved in one and have questions about your rights and obligations, please give us a call on (09) 375 8699, or send us an email at employmentnews@heskethhenry.co.nz. One call may save you a lot of stress!
