Lane Neave Solicitor Holly Struckman discusses the decision in Gillan v Birchleigh Management Services Ltdwhere the Employment Relations Authority found in favour of a former aged care worker who was sacked after she took a bag of chips designated for residents.
It is commonly understood that to justify terminating an employee’s employment you have to tick two boxes:
1. Follow a fair and proper process; and
2. The termination of their employment has to be substantively justified i.e. the “thing” the employee did has to be bad enough to terminate their employment.
The case of Gillan v Birchleigh Management Services Ltd  NZERA Christchurch 142 highlights that theft isn’t always theft. The Employment Relations Authority (ERA) deemed the employer as “unnecessarily severe” when they dismissed a long-serving employee who was employed as a caregiver with them for over 12 years.
On 17 June 2016 the employee took a small bag of potato chips from a cupboard where the employer kept refreshments for residents of the rest home. She ate a chip, realised they were stale and threw away the rest of the packet.
She was invited to a meeting where she denied dishonest intent but accepted taking the chips. The employer had strict policies with regard to the security of residents’ property. With this in mind they dismissed her for serious misconduct.
The ERA concluded that as a fair and reasonable employer the taking of the chips amounted to serious misconduct, even if she lacked any intention to steal them. This was in line with the Care Centre rules which referred to unauthorized possession of property belonging to residents as being serious misconduct. However, a dismissal for serious misconduct must show the employee has significantly damaged the foundation of the employment relationship, one of trust and confidence. The ERA found that this threshold had not been reached; there was a significant difference between the employee taking a small bag of chips and any risk of her taking resident’s personal possessions or money.
The Authority highlighted the issue was with the severity of escalating a finding of serious misconduct to a dismissal, without first carrying out a proper investigation of the incident. All the circumstances needed to be weighed up before an informed decision could be made. The ERA considered that Birchleigh had taken a zero-tolerance approach, meaning a dismissal was the only option. The ERA held that this indicated a pre-determination of the outcome.
The ERA awarded the employee $18,750.00 compensation for humiliation, loss of dignity and injury to feelings, after a reduction of 25 per cent for her contribution to the incident. She was also awarded three months’ lost wages.
If you have any queries in respect of the above, please contact the author.
Read the case of Gillan v Birchleigh Management Services Ltd  NZERA Christchurch 142 here.
Solicitor Holly Struckman assists in providing legal advice on a range of employment related matters, including health and safety and immigration. She has experience dealing with employment relationship problems such as personal grievances, redundancies, and disciplinary and performance management processes. Holly also drafts and reviews employment agreements, policies and procedures. Holly co-hosts employment law workshops and seminars in the Auckland region, and regularly writes articles on legislative changes and recent case law for publications including our monthly Workplace Law Newsletter. Holly provides pragmatic and practical advice to clients. Her key focus is to ensure clients’ objectives are met and satisfying results are achieved. Contact Holly at firstname.lastname@example.org or connect via LinkedIn.