Where an Employee has been unjustifiably dismissed or disadvantaged, any compensation can be reduced to reflect the Employee’s own contribution to the situation. Recently, the Employment Relations Authority decided that although the Employee had been unjustifiably dismissed, his behaviour and lies contributed 100% to the dismissal and therefore was not entitled to any remedies.
Kevin Lenaghan had been employed by Hydrovac Limited as an unsupervised heavy machine operator, working at various work sites across Auckland. Co-workers and clients complained to Hydrovac that Mr. Lenaghan was drinking alcohol on site and offering it to others. Hydrovac suspended and dismissed Mr. Lenaghan.
Mr. Lenaghan filed a personal grievance and the Authority found there had been failings in Hydrovac’s disciplinary process which meant Mr. Lenaghan had suffered an unjustifiable disadvantage and had been unjustifiably dismissed.
However, Mr. Lenaghan had a history of offending, including stealing furniture and impersonating a pilot. The evidence against Mr. Lenaghan also showed an inability to refrain from lying when under a legal obligation to tell the truth. The Authority decided Mr. Lenaghan’s behaviour was causative and blameworthy to the extent that 100% reduction in remedies was appropriate and declined to award Mr. Lenaghan any compensation.
Although not addressed in this determination, Mr. Lenaghan may still have been eligible for an award of lost wages and costs.
This determination is in contrast to another recently released decision in which the Authority awarded an Employee $32,300 after he was dismissed for failing a drug test. The Authority emphasised that although an Employee fails a drug test, the Employer is still required to conduct a fair investigation, including considering all possible explanations and outcomes, including offering rehabilitation.
For more information on how to conduct a disciplinary process for serious misconduct please see our E-Book
Discipline & Dismissal
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