Employee argues health issues and family circumstances justified extensive absences
The Employment Relations Authority (ERA) recently dealt with a personal grievance claim involving a council recreation planner who was summarily dismissed for serious misconduct after being absent from work for over 50 per cent of his scheduled workdays during a five-month period.
The worker argued that his dismissal was unjustified despite acknowledging his extensive absences, claiming his employer failed to follow its own progressive disciplinary processes and should have considered alternatives such as medical incapacity or formal warnings.
He also argued that his health issues and family circumstances contributed to his attendance problems.
Attendance issues and health challenges
The worker started employment with the council on 17 August 2023 as a recreation planner within the operations team. His role involved developing strategies and partnering with multiple entities to deliver recreational facilities and sporting development.
He was employed on a full-time basis, working 40 hours per week, Monday to Friday from 8 am to 5 pm, with some flexibility in start and end times.
The worker lived in Tauranga and commuted approximately one hour to Rotorua each day, which created logistical family difficulties. He admitted in hindsight that the role "was not the right role for him and did not have the flexibility that he needed."
Despite not discussing it at the interview, he had expected to be able to work two days each week from home, but when this was not offered, he described himself as "stretched thin," delivering full-time hours.
The worker also had existing health issues that sometimes impacted his ability to work, describing himself as "vague" and "cloudy" at times. He was seeking medical support, but said this failed him and he was not getting what he needed to adequately manage these issues.
While the council was accommodating and offered internal and external support, he agreed he was not able to deliver the work hours he had committed to when accepting employment.
Extensive absence patterns and communication failures
Between 17 August 2023 and 5 November 2023, the worker was absent for 9 days, excluding one day taken as annual leave in lieu of sick leave. He was then fully absent from 6 November 2023 through to 23 January 2024 when his employment ended.
This meant the worker was absent for over 50 per cent of his scheduled workdays during the five months of his employment.
The council provided a timeline of at least 24 scheduled workdays where the worker had either communicated his absence after his start time or not communicated his absence at all.
The manager provided regular and appropriate follow-up communication by email or text message throughout the worker's employment, with all communications timestamped to evidence the worker's lack of effective and timely communication about his absences.
The workers' medical certificates also created confusion and an administrative burden. On 23 November 2023, he provided a medical certificate for 11 days' absence, but advised he would be in the next day, creating an inconsistency.
When the manager queried this and requested a corrected certificate six times over several days, the worker repeatedly sent the same incorrect certificate. Similar issues occurred with subsequent certificates, with errors in the calculations of absence days and unsigned documents.
Disciplinary process and dismissal decision
The council's first formal communication raising concerns was on 21 November 2023, when the manager emailed the worker inviting him to a meeting on 23 November 2023 to discuss his absences.
The letter confirmed this was not intended to be a disciplinary meeting, and a support person was welcome, but the worker did not attend. Similar attempts on 28 November 2023 were also unsuccessful.
The next letter was sent on 1 December 2023 for a meeting on 5 December 2023, which emphasised it was "extremely important that we meet with you" and noted that a "potential outcome of the process may be termination of employment."
The worker attended this meeting, and the council subsequently sent a letter summarising the meeting and outlining a return-to-work plan with weekly meetings and flexible hours arrangements.
The final letter was emailed on 17 January 2024 for a meeting on 23 January 2024. This letter was titled an "investigative/disciplinary meeting" and listed six occasions where the worker had allegedly failed to attend and contact the council as required.
It alleged breaches including "failure to follow standard procedures," "absence from duty without authority," "unacceptable levels of absenteeism," and "lost trust and confidence in the employment relationship."
The letter was underlined with a notification that "if you fail to attend this scheduled meeting, the outcome of this process may be termination of your employment."
Serious misconduct allegations
The ERA found that until the 17 January 2024 letter, the council "undertook a robust process to address its concerns" about the worker's absences.
The Authority noted that multiple texts showed "genuine attempts to communicate with him, care for his wellbeing and an aim to get him back to work." Clear expectations were set, and the council was "active and communicative" with the worker.
However, the ERA identified a critical issue with the dismissal decision. Of the five alleged breaches listed in the disciplinary letter, four were directly extracted from the council's code of conduct as examples of misconduct, not serious misconduct.
These included failure to follow standard procedures, absence from duty without authority, unacceptable levels of absenteeism, and failing to report absences by telephone.
Despite these alleged breaches being listed as misconduct under the code of conduct, the council decided to summarily dismiss the worker for serious misconduct based on a breach of trust and confidence.
The ERA noted that the code of conduct outlined "a defined and progressive warning process for addressing misconduct 'offences'" and concluded it would be "disingenuous" of the council to "list examples of misconduct and outline a supportive and stepped process to address these actions, then to ignore that process without any other exacerbating factors."
ERA's findings and remedies
The ERA applied established legal tests, first considering whether the conduct was capable of amounting to serious misconduct, then whether dismissal was warranted in all circumstances.
The Authority found that "an employer cannot ignore its own progressive processes and then collate repeated misconduct into serious misconduct warranting summary dismissal."
The ERA determined that as a "fair and reasonable employer," the council "had a duty to address the misconduct and follow its own progressive warning system it communicated to its employees."
There were no warnings given prior to the worker's dismissal, and the Authority found that "a finding of serious misconduct warranting summary dismissal was disproportionate to the absences and failure to communicate at that time and in those circumstances."
The Authority also considered that the council was "a large, well-resourced organisation with the benefit of human resources support" and noted that other outcomes were available, including no-fault termination on medical incapacity grounds or formal warnings.
The ERA concluded that the council's "obligation to consider all relevant circumstances known to the employer at the time of dismissal and possible alternatives to dismissal, was not met."
Worker's contributory conduct
While finding the dismissal unjustified, the ERA made significant findings about the worker's contributory conduct. The Authority accepted the worker's evidence that he "did the best he could getting to work when he could" and had prioritised his health appropriately.
However, the ERA noted that when it became evident he was unable to deliver 40 hours per week, "he owed an obligation to actively and constructively communicate this to his employer."
The ERA found that as a direct result of his failure to communicate effectively, the council "spent considerable resources, including [the manager's] many unnecessary hours following up if [the worker] was attending work and reorganising the team at a busy time of year."
The Authority noted that the worker "knew the expectations of his employer to advise of absences and chose not to follow those clear and reasonable instructions."
The ERA determined that "on the basis that the actions of the employee entirely contributed to the situation giving rise to the grievance, no monetary award for compensation is made."
However, the worker was awarded four weeks' pay totalling $7,500 under the mandatory provisions for lost wages, as he was "deprived of the opportunity to improve" by the summary dismissal. The Authority also ordered reimbursement of the $71.55 filing fee, bringing the total award to $7,571.55.
