Mr Sandhu had been a baker at Loaf Ltd in Penrose and had received a verbal warning regarding food and hygiene safety four months into his employment. A month later the HR Manager saw him flick a small ball of dough at another baker inside the bakery area where food is prepared.
The HR Manager and bakery owner Mr Armstrong had a stand-up disciplinary meeting in an area which contained a freezer and which the staff break room was off. There was potential for staff members to come across the group having the discussion, although this did not occur. Mr Sandhu was asked by Armstrong: “Why are you throwing dough in my f***ing bakery?”. Mr Armstrong denied he was angry but recognised he was frustrated and very concerned.
Mr Sandhu said it was a joke, he had no specific reason for doing it and he had seen other bakers, including supervisors, throwing dough balls almost daily during the evening clean-up. Mr Sandhu also said he had never been told he was not allowed to throw dough. Mr Armstrong said that in any work environment it is not possible to list all of the do’s and don’ts and that in any case, he regarded food throwing as unacceptable.
The reason dough throwing was considered so serious by Loaf was because of contamination including allergens such as sesame seeds getting into dough products, and that if a person operating machinery was distracted by dough throwing, it could cause an accident. There had been a finger injury in the bakery before.
Mr Sandu had no explanation and was suspended and told he had 30 seconds to leave the building and that they would trespass him if he came back.
The Employment Relations Authority member said there were several aspects of the suspension meeting that were concerning. The meeting was hurried without the opportunity of a cooling down period, the meeting was not held in an office but just outside the break room and was conducted standing up. The employee does not have English as his first language and the Authority said that against this background, misunderstandings are more likely. Additionally, the prospect of suspension was not put to Mr Sandhu to allow him to comment before the decision was made to suspend. The ERA said although Loaf had reason to suspend, the process was carried out unfairly and Mr Sandhu was disadvantaged by Loaf when it suspended him.
Mr Sandhu said he left thinking he had been dismissed.
Loaf sent Mr Sandhu a letter asking him to a disciplinarily meeting the next day however he did not attend the meeting or answer the calls from Loaf who tried calling him several times and left messages for him when he did not turn up for the meeting. Mr Sandhu accepted he knew there was to be a meeting where Loaf were going to discuss issues which they thought were serious. He says that he could not think properly, that he got distracted and that is why he did not call anyone at Loaf to tell them that he was not coming to the meeting. The Authority accepted that Mr Sandhu felt under pressure but found his explanations unsatisfactory as to why he did not contact someone at Loaf to say that he was seeking advice and/or needed more time. He had a good faith obligation to be communicative and could have contacted the HR Manager or his supervisor or Mr Armstrong.
When Loaf did not hear back from Sandhu by 3pm his employment was terminated.
In its determination the Authority said Loaf did meet its obligations to act in a procedurally fair manner to dismiss, but only by a narrow margin. However, the Authority did not consider the dough flicking to amount to serious misconduct and to so deeply impair trust that it justified a summary dismissal. This is because only a month before Loaf had given Mr Sandhu a verbal warning for a similar food safety and hygiene concern.
The ERA concluded the dismissal procedure was fair but the reason for the dismissal was unfair and the suspension was unfair and caused disadvantage.
Mr Sandhu claimed three months’ lost wages and $15,000 for hurt and humiliation.
The ERA awarded him seven weeks lost wages, accounting for the time he remained in NZ before going home to India. Mr Sandhu provided no evidence he had looked for work in India for the remaining five weeks of the three-month period claimed. Mr Sandhu was awarded only $4000 for loss of dignity and injury to feeling, partly because his actions were “causative of the outcome and blameworthy”.
It is important to be prepared to undertake a correct suspension process, as in some instances this needs to be carried out quickly. If you would like a copy of our free fact sheet about carrying out a suspension, click here.