No-show could land employees in hot water

A common source of complaint by employers is employees frustrating attempts to investigate an allegation of misconduct, most often, by a refusal to meet. So what should an employer do if an employee simply doesn’t turn up to a disciplinary meeting? Can an employee delay the process indefinitely and how far can an investigation continue without the employee’s input?

An essential procedural requirement on an employer during a disciplinary process is to provide an opportunity for the employee to be heard. However, the Employment Relations Authority has confirmed that employers:

• don’t have to wait forever if an employee doesn’t turn up to a disciplinary meeting; and
• can make decisions without an employee attending a meeting, in appropriate circumstances.

In Wilson v Pet Stay Ltd the Authority considered personal grievance claims by Ms Wilson who had been dismissed for serious misconduct without actually attending a disciplinary meeting. The Authority heard evidence that there had been four attempts to have Ms Wilson attend a disciplinary meeting. Prior to the final rescheduled attempt to meet with Ms Wilson, the employer had advised that if she failed to attend, a decision would be made on the information the employer had available to it. Ms Wilson indicated that she would not attend and the employer dismissed her.

The Authority dismissed the employee’s subsequent personal grievance claim. It determined that the employer’s decision to dismiss was what a fair and reasonable employer could do in the circumstances. The employee had acted unreasonably by not being responsive and communicative (part of the obligation of good faith), and had no genuine reason not to attend a disciplinary meeting to respond to the allegations.

Non-attendance at meetings, delay or the attempt to set preconditions on attendance at a disciplinary meeting is not uncommon. However, employees considering the use of these tactics should be forewarned by the Wilson decision that if the employer’s request to attend a disciplinary meeting is reasonable, it will almost always be unreasonable for the employee to refuse.

When considering whether a request is reasonable, factors such as timing and location, the employee having a reasonable opportunity to take advice or obtain representation, and the employee having been provided with sufficient information, will be relevant.

If a decision is to be made without an employee having the opportunity to comment, it is crucial that the employee is put on notice that this may happen and an employer would be sensible to ensure it provides multiple and clear warnings to the employee of this possibility.

Seeking advice in advance of initiating a disciplinary process can enable an employer to:

• minimise costly procedural flaws;
• reduce the associated stress that comes with these issues; and
• pre-empt and manage potential strategies that may be adopted by an employee or his/her representative to stall or thwart the process.

This article was first published in the Waikato Times, 20 May 2013.