Bad behaviour excused in dismissal cases

By Dean Kilpatrick, Associate

First published in the NBR, 27 June 2008

Recent rulings could well leave many employers wondering how badly an employee has to behave before they can be dismissed.

Take the case of university lecturer Paul Buchanan who, the Employment Relations Authority said, was unjustifiably dismissed. Dr Buchanan, an American academic was sacked from the University of Auckland for sending an offensive email to a student questioning her academic ability and implying that she was relying on “Western sympathies” for her circumstances.

After his first email, Buchanan sent an apology but subsequently sent a further email questioning the validity of the student’s claim that her father had died. During the disciplinary investigation Dr Buchanan claimed that he had been suffering from stress due to the recent deaths of both his parents, and that the negative emails to the student were out of character. Despite this, the University decided that they could no longer trust him and did not have enough confidence to continue employing him.

This follows an Employment Court decision last year, X v Auckland District Health Board. In this instance, a senior doctor was dismissed for photographing his genitals on his mobile phone and emailing the pictures to an external party through his work email address. Unfortunately, the email was returned because it was wrongly addressed and it was discovered by support staff. After investigating the matter, the Auckland DHB said the doctor had breached his obligations under its IT policy. The doctor compounded his plight by communicating his displeasure to support staff for reporting the original email and mentioning other matters to the Auckland DHB. Such was his behaviour that the board found that the doctor had “bullied and intimidated” the administrative staff, including threatening to dismiss them. He was found guilty of serious misconduct and dismissed.

During the hearing the doctor said he was under significant stress and that he had recognised his behaviour was inappropriate. He apologised and gave reassurances it would not happen again.

The Employment Court found that the DHB had not acted as a “reasonable employer” and said the dismissal was unjustified. The doctor was reinstated to his former position on a permanent basis (however, no financial remedy was awarded).

In each instance, it appears at first glance, that both employees should have been dismissed and certainly the general public could be forgiven for questioning why the dismissals were held to be unjustified.

However, in each instance the phrase “brain explosion” was used, presumably along the same lines as cricketer Jesse Ryder’s brain explosion when he put his fist through a window during a night out on the town.

This brain explosion, along with the pleas by each employee that they were suffering from stress and, in the case of the doctor the effects of medication, combined with apologies and promises never to behave in that manner again, was their saving grace. While not accepted by either employer, both the Employment Relations Authority and the Employment Court said that these factors would have been considered by a reasonable employer and that neither employee would have been dismissed (it should also be noted there were procedural issues in each case that reinforced the Authority’s and Court’s decsions).

However, it should be noted in Buchanan’s case that his conduct was taken into consideration when declining reinstatement. In particular, the Authority was not convinced that Buchanan’s apology was genuine nor his undertaking that he would not repeat the conduct in question again. This second finding seems somewhat at odds with the Authority’s earlier conclusions that it was unreasonable that the university did not consider the promise never to repeat the conduct.

It’s interesting to note, and probably of concern to employers, that the Authority and the Court will look at such factors as brain explosions, apologies given (whether wholly genuine or not, if Buchannan’s case is anything to go by) and promises never to behave in this way again.

As a final point, Dr Buchanan has appealed the decision through the Employment Court on the basis that he was not reinstated. Given the circumstances, it will be interesting to see the outcome in comparison to the Auckland District Health Board case.

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