Making tough decisions about staff is part of running a business but getting it wrong can be costly. A recent case, Kaushal v Ambridge Rose Manor Ltd, serves as a powerful reminder that before you act, you must look at the whole picture. Rushing to a judgment or not considering all the facts can lead to your decisions being overturned.
A Quick Look at the Case
Ms Kaushal, a healthcare assistant at an Auckland aged‑care facility was involved in an incident in which it was alleged that she loudly argued with a resident and then her supervisor didn’t call the resident by her chosen name, and while that was all happening had also compromised the dignity of the resident. This was because the resident was left seated on a toilet with the door open to the corridor where people could walk past while the situation unfolded.
The employer having received two written complaints about Ms Kaushal’s actions and using CCTV footage decided as an outcome to a disciplinary process that Ms Kaushal had indeed compromised the resident’s dignity and had breached their policies. The outcome to the process was to terminate her employment.
A subsequent challenge by Ms Kaushal relating to the dismissal made it to the Employment Relations Authority (ERA) who decided that the employer had not assessed the situation fairly. They ordered permanent reinstatement of Ms Kaushal, payment of her lost wages and $6,000 in compensation. The amount of compensation was low as the ERA was satisfied that Ms Kaushal did contribute to the situation to an extent.
So how did what sounds like a very serious situation end in a reinstatement and extra cost?
It all came down to failures by the employer to assess the situation fairly. The Authority’s reasons included that;
- The conduct was not at a serious misconduct level: The alleged shouting/abuse by Ms Kaushal was not supported by the evidence, and some policy breaches were inadvertent with an example being that the toilet door was already open when Ms Kaushal arrived to help.
- An old written warning was given too much weight: The employer relied on a final warning issued 15 months earlier for unrelated conduct. The Authority deemed this unfair in the context of the new situation.
- Alternatives were not properly considered: The employer had already decided on dismissal before meeting with the employee, failing to consider other options like retraining or a formal warning.
Essentially, the Authority was of the view that the employer didn't take enough of a step back to look at the whole situation. They failed to weigh the employee’s perspective, the influence of her supervisor, and whether the punishment truly fit the alleged offence.
So what are the key takeaways?
This case offers some good reminders about the importance of full and fair process and that reinstatement can be a remedy amongst others. So how can you avoid making the same mistakes?
- Always investigate thoroughly and impartially: Check all the facts in context, including the employee's side of the story before forming a view. If you are using the support of an external service provider such as Grow HR make sure to share all of the information you have.
- Classify behaviour correctly: Distinguish between poor handling/communication and serious misconduct that destroys trust.
- Keep an Open Mind: Expect the unexpected by never going into a disciplinary meeting with an outcome decided. Genuinely listen to the employee's response and be prepared to consider all options.
- Assess Proportionality: Review your proposed action and be satisfied that it is fair and proportionate to the situation. Serious misconduct should be reserved for truly serious actions. Consider the employee’s history, their explanation and any mitigating factors before making that decision.
- Consider outside help. If you are too close to the action to be genuinely objective, get external help to investigate and to assist with any disciplinary process.
Decisions that squarely reflect all the facts, the context, and realistic alternatives are far more likely to be upheld. If you are facing a difficult employment situation and are unsure how to proceed, don’t handle it alone. Give us a call. Even a five minute chat could save you money and reputational harm.