News
When not to have your lunch break
The history of cinema is filled with stories of hapless heroes who have to come to terms with behaving in a way with which they are not familiar.
The story Pygmalion, for example, has been re-told in a variety of different ways - including through the hapless Ms Doolittle in My Fair Lady . Can the uncultured commoner be taught how to behave properly - at least enough to fool her supposed peers?
Knowing how to behave is an important part of performing any job. An employer is entitled to expect that its employees will behave in a way appropriate for a particular role. Some standards may be prescribed in the employment contract - or in policies issued by the employer. Other standards may, however, be left to be determined by the application of commonsense.
A difficult issue may, however, arise where an employee falls below one of these required standards.
On one hand, if the employee's behaviour constitutes performance which is simply below expected levels required for the job, there will be a performance problem - justifying the employer in introducing some form of performance management.
In the ordinary course, the employer will be required to tell the employee how their performance has dipped below the acceptable standard - and give them a reasonable opportunity to improve to that required level. It is only after this opportunity to improve that the employer may (if the employee's performance has not improved) take disciplinary action - which might include dismissal.
On the other hand, however, certain behaviour may constitute misconduct. Broadly, this encompasses conduct which is of such a nature that it brings into question the employer's ability to continue to have the required trust and confidence in the employee to perform his or her job.
In contrast to a performance problem, a matter of misconduct should be investigated discretely - and, if appropriate, disciplinary action may be taken as a result (which may, depending on the seriousness of the misconduct, include dismissal).
The line between these two different concepts is not always easy to draw - as is illustrated in the recent decision of the Employment Court in Morris v Christchurch International Airport Limited (Unreported, Employment Court Christchurch, 24 June 2004).
The case concerned an employee - Ms Morris - who was an employee at Christchurch International Airport. She was employed full time in the car park booth at the airport parking facility (a job which she had performed for ten years).
In the course of 2002 a number of complaints were made about Morris' performance of her duties. These different matters were raised with her, and the outcome was a decision by the employer to place her on a performance management programme. She was told what her employer's expectations were - and was given a period of between three to six months to improve her performance to meet those expectations. It was agreed that her performance would be monitored by the employer throughout this period.
Unfortunately, about two months into the performance management programme, something occurred which caused the employer real concern.
Morris was working the afternoon shift at the airport. Under the terms of her employment agreement, she was entitled to take a meal break "after four hours of work, or at such other agreed time". It seems that the usual practice was to leave it to the employee's discretion as to when the break was taken - with some vague, but well understood, expectation that a meal would be taken when traffic was expected to be light rather than heavy.
On this occasion, however, Morris took a break at a time when she should have realised that the airport was about to become busy. During her meal break, traffic backed up to such an extent that a security guard was required to allow cars out without charge - or on the basis of a nominal "gold coin" fee.
Understandably, the employer was most upset about this incident. It required Morris (and her representative) to meet with it to discuss it. Ultimately, it concluded that the incident was a further example of Morris' inability to meet the employer's customer service expectations. It dismissed her.
Morris took issue with the employer's decision to dismiss her. Amongst other things, she alleged that the incident was not one which constituted misconduct - but was rather another example of a performance problem. Because she was undergoing a performance management programme, it was unreasonable for the employer to dismiss her before the end of the agreed monitoring period.
The Employment Court agreed with Morris. It held that, in itself, the traffic back-up incident could not have justified dismissal. It characterised Morris' breach as an error of judgment. On this basis, the Court concluded that Morris' dismissal was unjustified - and ordered the employer to pay her compensation.
In the course of the judgment, the Chief Judge reflected upon the difference between a performance concern and an incident of misconduct. He held that it was broadly equivalent to the difference between a criminal charge against a motorist for running a red light, and a charge of manslaughter.
While one can sympathise with this attempt to draw a helpful analogy, many employers may have difficult with the particular example chosen. Running a red light may not necessarily be an example of a negligent action. It may be done intentionally. Establishing whether it actually was intentional may be difficult. Further, the seriousness of the breach may vary depending on the circumstances (for example, an empty taxi running a red light may not be viewed as seriously as a fully-laden petrol truck).
Ultimately, it is not always easy for an employer to know whether particular behaviour is best characterised as a performance concern - or as an incident of misconduct. In some cases the distinction will be obvious. In others (arguably including Morris' case), however, the distinction is more difficult to draw.
