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Missing in Action - Dismissing an Employee for Absenteeism
On 5 December 1945 five Avenger Torpedo Bombers took off from a naval air station at Fort Lauderdale in Florida. Their mission required them to fly east for about 60 miles over an area of water between the Bermuda Islands and Puerto Rico.
Contact was never re established with these planes - and, indeed, to this day their fate remains a mystery. These five aircraft became the first victims of what is known now as the "Bermuda Triangle" - an area of water that has mysteriously accounted for a disproportionate number of disappearances of ships and aircraft alike over the ensuing years.
Part of the attraction of the legend of the Bermuda Triangle is that no one really knows what actually happens out there to cause such mysterious disappearances (although Stephen Spielberg offered his own explanation in Close Encounters of the Third Kind). All that we really know is that once something has disappeared over this area of water, it is almost certainly not coming back.
The concept of unexplained disappearances is not altogether unknown in employment law. Some employees have an uncanny knack of being able to disappear without explanation - and seemingly without trace.
So what is an employer to do in this situation?
The relevant law in this area was examined in the recent decision of Postlethwaite v Gas Company Ltd (Unreported, Employment Relations Authority, Christchurch, 30 July 2003).
Mr Postlethwaite was employed by the Gas Company as a gas filler and delivery driver. He was expected to work 50 hours per week in his role. In addition, he was also asked to work occasionally on weekends (for a separate hourly rate) - and said that, in reality, his usual work requirements often necessitated him working up to 12 hours a day.
The difficulties in Postlethwaite's employment relationship arose as a result of a conversation that had occurred between him and his manager. Postlethwaite said that he had complained that he was tired - and that he needed a break. As a result, he said that his manager agreed to allow him to perform a small amount of work the next morning, following which he would be able to have the rest of the day off.
Postlethwaite said that he arrived at work the next day to find that he had been assigned several deliveries, some of which required him to travel a significant distance. He complained that the amount of this work exceeded the agreement that he had reached with his manager and, as a result, only actioned a portion of the deliveries assigned to him before going home to bed.
Postlethwaite's employer subsequently received telephone calls from disconcerted customers whose gas cylinders had not been delivered as expected. The employer tried to make contact with Postlethwaite unsuccessfully. He did not return to work that day.
Postlethwaite did not come to work on the next day either. The employer said that it had difficulty making contact with him because his cell phone was turned off - and because he lived in dormitory type accommodation which only had a communal phone. As a result, there could be no guarantee that messages were being passed appropriately to him.
Postlethwaite did not attend work on the following day - a Saturday.
Postlethwaite did not turn up for work at the ordinary time on the following Monday. The employer did, however, succeed in making contact with what appeared to be his sister - and then later succeeded in making telephone contact with Postlethwaite. In the course of this conversation, the employer indicated that Mr Postlethwaite's employment was terminated. Subsequently, the employer explained that the decision to terminate had been made for two reasons - Postlethwaite's absences led to an issue of reliability, and there was a real concern about a loss of custom due to his failure to provide appropriate service.
The Employment Relations Authority found that Postlethwaite was dismissed for being absent from work without authorisation on each of four days. It found, however, that the employer's decision to dismiss Postlethwaite was substantively unfair - and was executed in a manner which was procedurally unfair.
In essence, the Authority found that Postlethwaite had been denied the opportunity to provide an explanation about his absences.
At the same time, however, the Authority found that Postlethwaite had not helped the situation by leaving work without providing any notice to the employer - especially in circumstances where he had left customers' products undelivered. In this way, the Authority found that Postlethwaite had contributed to his own demise.
In any event, the Authority concluded that any compensation awarded to Postlethwaite should be reduced by 40% to take account of his own contribution. It awarded Postlethwaite reimbursement of lost wages of $1,950 and compensation for hurt and humiliation of $3,000.
This case illustrates that absenteeism can present difficult questions for an employer. It can happen that an employee appears to enter the Bermuda Triangle - disappearing without trace or explanation. That fact alone is not, however, sufficient to allow an employer to dismiss the employee. The employee is entitled to an opportunity to present an explanation - meaning that the employer must conduct an inquiry before making a decision to terminate employment. As this decision illustrates, a failure to follow an appropriate procedure may result in the employee bringing a successful claim for compensation.
