Employers are required to ensure that a fair and reasonable process is followed to investigate allegations and claims made by an Employee. The Employer must ensure that any concerns or complaints raised by an Employee are taken seriously, and that these matters are addressed in a timely and appropriate manner.
Within a recent case at the Employment Relations Authority (ERA) – Kinzett and Fire Emergency New Zealand [2024] NZERA 396 the Authority Member was required to assess whether the Employee had an arguable case for unjustified dismissal and for permanent reinstatement following a complaint being raised against the employee.
See here.
The case involving Kinzett and Fire and Emergency New Zealand (FENZ) centres around allegations of workplace bullying and misconduct. Kinzett, a former station officer, was dismissed on the basis of serious misconduct, specifically related to making repetitive sexual comments towards another Employee that FENZ concluded amounted to bullying and harassment. The dismissal occurred after complaints were exchanged between Kinzett and two other firefighters, leading to an independent investigation by FENZ. The investigation found Kinzett to be in violation of the organization’s policies, while one of the complainants was also found to have bullied Kinzett.
Kinzett brought claims against FENZ, asserting that the organization had failed to adequately address a toxic work environment and the bullying behaviour he had experienced, which he claimed affected his health and career.
Kinzett challenged his dismissal, arguing that it was unjustified. The Employment Relations Authority (ERA) found in favour of Kinzett, determining that FENZ had not sufficiently protected him from the detrimental effects of workplace bullying. The ERA noted that despite Kinzett’s complaints, FENZ did not take appropriate actions to address the issues. The case highlighted systemic issues within FENZ, including insufficient policies and practices to prevent and manage workplace bullying and harassment.
As a result, Kinzett was awarded compensation for the distress and harm caused, including lost wages and costs associated with his departure from the organization. The case also led to broader scrutiny of FENZ’s workplace culture and practices, prompting discussions about necessary reforms and improvements in handling such cases.
Furthermore, The Employment Relations Authority (ERA) granted him interim reinstatement, allowing him to return to work while his substantive claims were being assessed. This decision was made despite FENZ’s concerns regarding the potential impact on the workplace and the possibility of repeat behaviour. The ERA noted that Kinzett had maintained acceptable conduct in recent years and the likelihood of future issues seemed minimal. The final resolution of Kinzett’s claims is expected later in 2024 or early 2025
The investigation process within this case took approximately two (2) years to complete as there were multiple complaints between the different parties involved in this matter.
However, despite having a robust investigation process, the ERA determined that FENZ decision to terminate Kinzett within a disciplinary meeting, rather than seeking alternative options, to be flawed.
The ERA concluded that FENZ actions could have been seen to have been unfair (towards Kinzett) as he was the only Employee terminated, whereas other employees who also had complaints raised against them, retained their employment.
This case highlights the need to ensure that a correct process is followed right through to its conclusion, including ensuring that all alternatives to termination are considered before final decisions are made.
Should you find yourself in a situation whereby you are contemplating an investigation, or you are considering the termination of an employee and need a ‘second opinion’ before making the final decision, please feel free to contact us directly where one of our team of Licensed Private Investigators and experienced employment relations professionals would be happy to assist you.