'Little brother' rule of disciplinary investigation

A recent case from the Employment Relations Authority highlights the need for employers to be particularly careful in declining to pay an employee's wages based on suspicions of misconduct, writes Mary-Jane Thomas in this week's Work to Rule.

Miss C, a university student, was employed as a sales assistant in an upmarket Auckland clothing store between November 2009 and February last year.

At the end of her employment, C expected to receive a final payment calculated at $2 an hour for every hour she had worked over the summer holidays, in accordance with her employment agreement.

The relevant clause provided: "The pay rate will be $15 per hour plus a $2 per hour bonus for working the required rosters."

After her employment ended, C approached B, her employer, requesting the final payout. To C's surprise, B declined to pay, saying she was not entitled to it because of her "dishonest intention" to steal a pair of jeans, despite paying for them before she left.

On December 30, 2009, C's assistant manager approved C's request to take a pair of jeans on appro and C filled in an invoice accordingly. The price of the jeans was to be determined at a later date.

C wore the jeans to work during the next couple of months. On her last day, B asked if she had paid for the jeans, to which she replied she had "forgotten" to find out the price for them, leading B to become suspicious of C's intentions.

B gave evidence at the hearing that a "chain of circumstances" had occurred, leading her to suspect that C had no intention of paying for the jeans.

These included: irregularities in the appro book that made it look as if the jeans had either been returned or paid for; the magnetic tagging machine had been interfered with; items of stock had their magnetic tags removed; and C had been "unhelpful" in assisting inquiries into security breaches. C successfully brought a personal grievance, seeking $961 in unpaid wages and $76.88 annual holiday pay.

The ERA held that the dispute hinged on the interpretation of C's employment agreement. The relevant clause provided: "The pay rate will be $15 per hour plus a $2 per hour bonus for working the required rosters."

The ERA found that the clause did not provide for a discretionary bonus. It clearly states that payment is dependent on C working the required rosters, meaning the mere fact C that physically worked the required rosters automatically entitled her to the bonus.

In reaching this decision, the ERA member stated "suspicion is one thing, proof entirely another".

This column is not meant to scare employers. Undertaking employment disciplinary investigations is not rocket science.

Here is a rule I tell people when I give seminars:

All of us have a little brother (or sister) or maybe a child we feel particularly protective of.

When you are an employer undertaking an employment meeting or investigation, think how you would expect an employer to treat your little brother in the same circumstances.

If they came home and explained to you what had happened that day at work, would you feel aggrieved?

Before you pull someone in to talk to them about a workplace allegation without letting them know beforehand what it is about and letting them bring someone with them, ask yourself:

If this was my little brother, would I expect him to have been told what was going to be talked about?

Would I think he should be given the chance to then come home and discuss it with me so we could decide if he needed to get advice?

Would it be a meeting that I would have attended to make sure he was confident enough to tell his side of the story?

タグ：Jeans