A US federal judge has opined being a strain on HR can form part of the reason for sacking an employee. But would New Zealand law see it the same way?
A recent US court case has shown that being a strain on the HR department can form part of the basis for firing an employee.
It was a reason specifically given by A-G Administrators in Pennsylvania, USA, as why Maria DFrancesco was terminated from her job as an accountant with the company.
DiFrancesco was hired in 2009, when she was 55. According to court records two years later she was fired for a number of reasons including: unreliability; perpetual lateness; constant distraction due to personal telephone calls; communicating with co-workers with a total lack of respect, and being an overall strain on Human Resources.
DiFrancesca sued A-G for age discrimination, however the judge ruled the company had legitimate reasons for dismissing DiFrancesca including being an overall strain on HR.
Is this a case of only in America? Karen Radich, specialist employment law barrister at Clifton Chambers, told HRM it could be possible but challenging to use the argument here.
“In New Zealand, an employer’s decision to dismiss someone is measured against what a notional fair and reasonable employer could do “in all the circumstances at the time” (s103A of the Employment Relations Act 2000),” she explained. “In New Zealand, the impact of a person’s behaviour in a small organisation could certainly be a factor that is considered as part of “all of the circumstances”. However, as with any such factor, it will be important to outline this to the employee and give them a chance to comment before a decision is made. There will also need to be a valid basis, in the first place, for the employer thinking that the person’s conduct is untoward and that it is actually requiring an additional level of HR or owner/manager attention.”
She said organisations with in-house HR personnel it would be more difficult to argue that a person is a ‘drain’ on those resources – given that is one of the purposes of the HR department.
“However, in the more extreme cases, it might prove credible for an employer to keep track of the extent of HR time and energy spent on a particular employee and use that as one of the grounds for considering termination. It might be a bit of a stretch of ‘good faith’ in most cases though, so an employer that is thinking about this would be wise to tread carefully.”