Cases of being able to successfully justify a dismissal for reasons of incompatibility between employees are rare.
How does the employer resolve the situation where an employee has a serious breakdown in the relationship where another employee has acted badly, or who is acting badly towards them, despite warnings to stop their bad behaviour, and where attempts to resolve the situation between the two have been unsuccessful?
The starting point is that the onus is on the employer to establish that the employee was substantially responsible in the breakdown, that the relationship was beyond repair and that the dismissal was carried out in a procedurally fair manner.
The cost of not meeting this standard may be high. In the recent appeal to the Employment Court in Ashby v NIWA Vessel Management Limited the Employment Court substantially increased the remedies awarded to the dismissed employee from three months’ wages to 12 months’ wages and compensation from $20,000 to $35,000.
Kim Ashby was employed in 1996 as a cook on a large research vessel operated for NIWA by a subsidiary company. The ship operates two alternating crews with approximately a month on/month off roster. The crews live in confined quarters 24 hours a day, seven days a week at sea. In 2009 Ms Ashby made a formal complaint alleging sexual harassment by the (then) First Mate. Ms Ashby claimed the First Mate made inappropriate comments to her and put inappropriate pictures on her computer. Ms Ashby’s complaint was investigated and upheld and the First Mate was issued with a warning and apologised to Ms Ashby. He also offered to be moved to the second shift if NIWA felt it was in the best interests of all concerned.
The First Mate was then promoted to Master in 2011 and Ms Ashby reported to him. In 2014 Ms Ashby confidentially raised bullying concerns about the (now) Master’s behaviour towards her. She asked to be moved to the second shift. NIWA spoke to the cook on the other shift about a possible swap but as he was happy where he was the swap did not occur. Read more....