Criminal shenanigans and procedural fairness

Date Added: 12th February 2013 from Business Central


The Employment Relations Authority said ‘sayonara 2012’ in style in its decision in Gardner v Mallowbay Holdings Ltd & Anor, issued at the beginning of December.

Mr Gardner fell off a farm bike in mid-July 2010 and as a result of his injuries was unable to return to reliable full time work on the farm. On 13 August 2010 he was sent a text by Farm Manager Mr Isaac which read “If you are not well enough to do milking don’t come back”. This, claimed Mr Gardner, amounted to dismissal. Mr Isaac maintained that the meaning of the text was simply that he did not want Mr Isaac to return to his dutiebefore he was fit to perform them.

The Authority accepted Mr Isaac’s interpretation. Mr Gardner also lived on the farm, and continued to do so in the week following the text message incident. It was on 20 August that Mr Isaac’s wife (Mr Isaac being away on business and having left her in charge) observed Mr Gardner (too sick to work) loitering suspiciously, shovel in hand, in a remote farm barn some 2km away from his accommodation. Once he had departed from the scene, Mrs Isaac investigated and discovered cannabis hidden in two freshly-buried buckets. The Police were called, as were two other farmhands. Obviously drawn by the commotion, Mr Gardner also returned.

Despite some conflict as to what happened next, Mrs Isaac and one of the farmhands both agreed that Mr Gardner said to the senior police officer words to the effect “you got me”. It was also agreed by everyone that Mrs Isaac made it clear at that point that Mr Gardner no longer had a job. Although he was taken away for questioning and subsequently trespassed from the property, no criminal charges were ever laid, the Police report made no mention of the alleged admission, and Mr Gardner firmly maintained that he had not made any admission.

The Authority confirmed that Mr Gardner was dismissed by Mrs Isaac at that point and that the dismissal was effected without any shred of process. However, it still found that the decision was one that a fair and reasonable employer would have reached in all the circumstances. In preferring almost any evidence other than that from the vague and unreliable Mr Gardner, the Authority accepted that an admission had been made, that Mrs Isaac was in sole charge of the farm at the time and, with the Police about to remove Mr Gardner for questioning and acting under a reasonable expectation at the time that charges would be laid, was required to make an urgent decision “…without the prospect of a measured opportunity to reflect or take advice”. In those circumstances, ‘instant’ dismissal (in the true sense of that word) was justified.

While the decision is not binding (and could be appealed), it is interesting for two reasons. Firstly, it was decided under the old ‘would’ test for justification. The law now enquires into whether the dismissal is something that a fair and reasonable employer could decide to do – arguably a less onerous test for an employer to meet because it anticipates more than one justifiable outcome. Secondly, there was absolutely no procedural fairness about the way in which the dismissal was effected. The potential therefore exists for similar conclusions to be drawn in similar fact situations – that criminal offending in an employment context renders process (or lack thereof) largely irrelevant.

Dismissing without process is, however, risky and ill-advised in most cases. Your Business Central Solicitor or Consultant can provide practical advice and assistance in any disciplinary issue.