Personal Grievance - even after dismissal, actions can count [Apr 2009]

A recent decision of the Court of Appeal, Salt v Governor of Pitcairn and Associated Islands (2008), serves as a reminder to employers to thoroughly investigate the actions of an employee who has raised a personal grievance based on unfair dismissal, because the employee’s actions will be highly relevant to the quantum of remedies. This may even extend to actions the employer wasn’t aware of at the time of the dismissal.

Mr Salt was employed as Commissioner for Pitcairn Island and was responsible for the day to day administration of the affairs of Pitcairn Island. He was based in Auckland and had held the position since 1995. In 2001 Mr Salt indicated he no longer wished to remain in the role without a salary increase. From 2001 to 2003 there followed a period where Mr Salt was unwilling to sign a new contract. He believed the then Deputy Governor had complaints about his performance and he was distinctly unhappy with the situation.

By March 2003 Mr Fell, the Governor, was concerned that Mr Salt was deliberately undermining the office and authority of the Governor. In September 2003, following an unsuccessful mediation, Mr Fell dismissed Mr Salt by email giving him one month’s notice. Mr Salt raised a personal grievance claiming unjustified dismissal.

The Employment Relations Authority found the dismissal was unjustified on procedural grounds and awarded Mr Salt reimbursement of wages and superannuation as well as compensation, but found his conduct had contributed to his dismissal, and adjusted the damages accordingly by 50%. This adjustment was based on a series of emails which was not discovered until after Mr Salt was dismissed.

The emails contained highly disparaging comments about the Governor and other Government officials.

Mr Salt challenged the reduction of remedies in the Employment Court and then the Court of Appeal. The Employment Court found that the Authority was correct in taking the subsequently found emails into consideration when assessing Mr Salt’s contributing behaviour and reducing the remedies by 50%. The Court of Appeal agreed with the outcome, although it reached its conclusion by a slightly different legal path.

The Court of Appeal decided that “subsequently discovered misconduct of a significant nature could be taken into account in determining remedies under Section 123 of the Act”. The Court therefore could and should take the emails into account when determining wages, reimbursement and compensation. Furthermore, Mr Salt’s behaviour was so bad that if the employer had known of it then, the dismissal would have been justified. As a matter of “equity and good conscience” the wages reimbursement should be modest, and the 50% reduction was appropriate.

For more information contact Brett Vautier at .(JavaScript must be enabled to view this email address)

The contents of this newsletter are of a general nature only. While the information is believed to be correct no responsibility is accepted for its accuracy. Readers are advised to establish the applicability of information in relation to specific circumstances and not to rely solely on the text of this newsletter.

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