Two employees – same fight – different consequences?
Two employees employed by the Ministry of Primary Industries (MPI) got into a fight at a bar in Courtney Place, Wellington. One employee was dismissed, the other employee received a written warning. The employee that was dismissed (Mr Smith) challenged his dismissal on the basis that he had been treated differently to the other employee involved in the fight, who only received a warning.
This case raises the interesting question – if two employees are investigated in regard to the same matter (in this case, a fight), can the employer issue different disciplinary outcomes for each of the employees?
In Smith v Director General of the Ministry for Primary Industries  NZEmpC 20 the Employment Court considered this issue – and concluded that employees could be treated differently in terms of the disciplinary outcome – providing the employer could adequately explain differential treatment following a thorough and robust investigation into the matter. In this case, because Mr Smith was clearly the protagonist (a point noted in the investigation report and agreed to by Mr Smith), this provided an adequate explanation regarding MPI’s decision to issue different consequences for the two.
The take-home point for employers: if faced with an allegation of serious misconduct involving more than one employee, make sure that you have undertaken an independent and thorough investigation of the matter. If different disciplinary outcomes are proposed for the employees involved – make sure that you can provide an adequate explanation to justify differential treatment.
Workplace disciplinary investigations can be a minefield. The employment team at Gaze Burt are here to help – if this article raises questions for you, or you need assistance with a workplace investigation, get in touch so we can assist.