Publications
FYI
Employment Law
09 Oct 2008
Treatment of Historic Warnings
With more and more Employment Court judgments being issued concerning the actions of employers in dismissing employees, we thought it timely to circulate an update about a couple of these decisions, which deal with repeated breaches of policy and procedure, and repeated use of offensive language in the workplace. Neither of these are uncommon issues, so it is useful for employers to be aware of the way in which the Employment Court deals with such workplace problems. The decisions also clarify the way in which the Court is inclined to consider historic disciplinary warnings when subsequent misconduct occurs.
In the decision of Coffey v Christchurch Press, a division of Fairfax New Zealand Limited (12 June 2008) the Court looked at whether the dismissal of an employee for using offensive language to his manager was justified. The employee, Mr Coffey, had been employed by the Christchurch Press for 44 years before he was dismissed from his position as a sports journalist. Mr Coffey had been given two previous warnings, including an earlier final written warning for inappropriate behaviour/language. These warnings detailed the unacceptability of such conduct and the likely consequences of similar conduct in the future. After the third incidence of inappropriate language, Mr Coffey was dismissed for serious misconduct.
The Employment Court concluded that:
- the presence of the 2 previous warnings, including the final written warning, meant that Mr Coffey's reaction on the third occasion in swearing at his manager was, in light of those previous warnings, entirely inappropriate;
- Mr Coffey's manager could not have confidence that such inappropriate language/conduct would not happen again, as Mr Coffey had not attended any anger management course, nor EAP counselling that his manager had suggested could be useful for him on previous occasions;
- Mr Coffey's manager had no reassurance from Mr Coffey that such an incident would not be repeated; and
- In light of the stressful nature of the industry it was justifiable that Mr Coffey's manager had no confidence that Mr Coffey would conduct himself properly in any future stressful occasion.
The Court concluded that a fair and reasonable employer was entitled to treat Mr Coffey's misconduct as sufficiently serious to warrant his dismissal on notice.
This Coffey decision highlights the willingness of the Court to look at a history of similar conduct by an employee when determining whether a dismissal was justifiable. Therefore, even where the conduct, viewed in isolation, may not have been of sufficient severity to justify dismissal (or the disciplinary action taken), the threshold an employer is required to meet is lowered when the circumstances leading to the dismissal include previous conduct of the same or similar nature.
Furthermore, where an employee provides no reassurance that such conduct will not be repeated, an employer can reasonably take this failure into account when determining what disciplinary action is appropriate.
In the Employment Court decision of Butcher v OCS Limited (11 June 2008) Mr Butcher was dismissed for smoking in a non-smoking area while performing duties for his employer, OCS. Mr Butcher was employed as a trolley person by OCS at Christchurch International Airport.
Mr Butcher was given a warning in November 2004 for smoking while in a restricted area of the airport, wearing his uniform and outside of his official break time. Mr Butcher received a warning for his conduct in a letter. The letter concluded that "any breaches of this instruction would be deemed serious misconduct". On 14 October 2005 Mr Butcher was again caught smoking while carrying out his work duties. He was invited to a disciplinary meeting where he received formal notification that the matter was to be treated as serious misconduct. The employer's handbook categorised smoking in a non-smoking area as misconduct. However, OCS chose to regard his conduct not as a breach of the smoking policy, but as a failure to obey a lawful order. The handbook defined such a failure as serious misconduct, which could result in a penalty of dismissal without the need for warnings. Mr Butcher was subsequently dismissed after an offer of alternative employment was rejected.
The Court found that:
- adherence to policies and procedures contained in an employer's handbook were relevant to the 103A inquiry;
- an expired warning can be taken into account by an employer when deciding to dismiss an employee and by the Authority when deciding whether the employer had acted reasonably or unreasonably; and
- previous misconduct referred to in an expired warning may be relevant in determining the reasonableness of the employer's response to the new misconduct.
The most important feature of the case was the clear notification to Mr Butcher in the November 2004 warning that, notwithstanding what may be said in the handbook, any future smoking was prohibited on the Christchurch Airport site and could be treated as serious misconduct justifying dismissal. The smoking incident in October 2005 could thus be treated by OCS as either misconduct for smoking or serious misconduct for failure to obey a lawful and reasonable order.
The following facts were material to the Court's decision:
- There was a lack of reassurance that such an incidence would not occur again; and
- Mr Butcher had refused to transfer to one of its less safety sensitive sites where he could be free to smoke outside as long as he was not smoking on duty.
The Court therefore found that the employer's actions were those which a fair and reasonable employer would take in all circumstances.
This judgment is helpful in clarifying the status of expired warnings. While, where possible, it is useful not to put a time period on disciplinary warnings, historically it is recognised that the 'efficacy' of a warning diminishes over time. Nevertheless, in light of these decisions, an employer can consider past warnings as part of their decision making process concerning a subsequent disciplinary matter.
It is useful to see in both Coffey and Butcher the Court taking into account expired warnings, and the conduct noted in such warnings, when determining the justifiability of the employer's decision to dismiss. All warnings, whether verbal or written, should contain details of the employee's conduct, and the consequences of any repeated behaviour. Provided that the subsequent wrongdoing is treated in way consistent with the earlier warnings, they can assist in demonstrating that the later disciplinary action was justified.
Authors
Katherine Burson
Senior Associate - Employment
DDI: +64 9 977 5112
Mobile: +64 21 498 624
Email:
View Profile
Lucy Jenkins
Senior Associate - Employment
DDI: +64 4 924 3401
Mobile: +64 21 221 4534
Email:
View ProfileWhat next?
In This Article:
In the decision of Coffey v Christchurch Press, a division of Fairfax New Zealand Limited (12 June 2008) the Court looked at whether the dismissal of an employee for using offensive language to his manager was justified.
