Employers must consult with their employees before taking action

The Employment Relations Authority (ERA) recently found in Fensom v KME Services NZ Pty Limited that employers must properly consult with their employees over a change to workplace practice before it is made.  The ERA decided the employee had been unjustifiably disadvantaged and subsequently dismissed as he was not given the opportunity to explain his reasons for refusing to use the face scanning bio-metric system.

Mr Fensom had worked for KME for eight months as a leading hand electrician during the construction of Christchurch’s new hospital.  He was away on a two-week holiday when use of the Timecloud system came into effect.  On return to work, he did not use the bio-metric system, but instead he signed into work using a paper timesheet.  Mr Fensom was told that if he did not follow the company’s new health and safety policy he “may get a warning letter in relation to this breach.”  The next day Mr Fensom again refused to use the face scanning system.  As a result his supervisor issued him with a letter terminating his employment.  Mr Fensom’s employment was terminated as he:

• Questioned the invasiveness of the newly introduced face scanning system;
• Refused to use the new biometric system; and
• He did not comply with his first warning about using the system.

There are a number of key learnings from this decision:

• An employer who believes an employee has committed an act of serious misconduct must meet the statutory test of justification – s103A(1) and (2) of the Employment Relations Act 2000.
  • An employer must sufficiently investigate its concerns about the employee’s actions including whether concerns were raised with the employee, the employee had a reasonable opportunity to respond and whether the employee’s explanations were genuinely considered.
• A just process includes providing an employee with a notice of the allegations, the opportunity to seek advice and representation and the right to be heard by the person who is making any disciplinary decision (this was further outlined in Mr Fensom’s employment agreement).

KME’s biggest downfall was their inability to consult with their employees before any decision was made.  Mr Fensom was awarded the following sums for unjustified dismissal and unjustified disadvantage:

• $11,286.00 in reimbursement of lost wages; and
• $12,000.00 as compensation for humiliation and injury to his feelings.

Workplace Law team

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw,  Fiona McMillan