Disciplinary procedures: a recap

A recent example of a flawed dismissal process was outlined in Payne v Bupa Care Services Ltd [2018] NZERA Christchurch 84. Payne was employed by Bupa Care Services Ltd (Bupa) as a Village Manager of the Ascot Retirement Village in Invercargill from 9 November 2015 until around 27 October 2016 – 3 November 2016 (the dismissal date was in dispute between the parties). Bupa made a number of allegations against Payne relating to her performance, complaints that had been made against her, and various breaches of her employment obligations which ultimately led to her dismissal.

In support of her claim, Payne relied on the following procedural deficiencies:

1. Bupa grouped performance issues with misconduct in the same disciplinary process. And the performance issues were never discussed with Payne before the disciplinary meeting.
2. The employee conducting the investigation had predetermined negative ideas about Payne. The fact that the employee later stepped out of the investigation was irrelevant as she provided the “bedrock” for the next employee who took over the investigation, and she still remained directly involved in the investigation up until two days before the disciplinary meeting.
3. The first letter Bupa sent advising Payne about the complaints provided, “no specificity as to the allegations being made.” It also requested that she not discuss the complaints with other employees or treat any residents differently. The Authority considered this to be “highly unusual, inappropriate and unfair” because without the details of the allegations, Payne was unable to meet those requests. This was further exacerbated by Bupa not providing more details when Payne requested them.
4. Bupa claimed that a second letter which it sent to Payne two weeks after the first letter, and 13 days before the disciplinary meeting, cured the initial procedural deficiencies. The Authority stated that there was no way the disciplinary meeting could have cured the deficiencies, particularly as Payne was ultimately dismissed.
5. Further allegations which were “still being analysed” were put to Payne and outlined in a letter before the disciplinary meeting”.
6. Bupa was overly concerned and preoccupied with how Payne’s lawyer’s behaviour during and it recorded that “[i]t was not a positive discussion where we could get to grips with [Ms Payne’s] thoughts and responses to the allegations”. However, Payne was still dismissed after the meeting.
7. Bupa advised other employees of Payne’s dismissal before it made her aware.

The Authority held that Ms Payne’s dismissal, and the process followed by Bupa, was not in accordance with what a fair and reasonable employer could have done in all the circumstances at the time. The Authority held:

“I have found the investigation undertaken by Bupa was deficient in several major respects. These procedural deficiencies, whether viewed individually cumulatively, were not minor and they resulted in Bupa treating Ms Payne unfairly”.

Ultimately, the Authority agreed that Payne had been unjustifiably dismissed, that she had not contributed to her personal grievance (under section 124 of the Act), and consequently awarded her six months lost wages, and $20,000 for hurt, humiliation and loss of dignity (which we now know to be the middle of the middle band for severity of compensation awards under section 123(1)(c)(i) of the Act).

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s 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