Briar Leckie v Alliance Group Limited [2020] NZERA 221

A detailed, plain-English summary of an Employment Relations Authority (ERA) determination about an unjustified suspension and a resignation that was treated as a dismissal. The full determination is embedded at the end of this page.

What happened

Ms Leckie worked for Alliance at the Mataura Plant from January 2016 until her employment ended in February 2018. On 21 February 2018 there was an incident between Ms Leckie and another worker, Kennedy White, in the work area. The beef slaughterhouse supervisor, Bruce Caughey, was called, and Ms Leckie was required to go to the office. The plant personnel manager, Ricky Gutsell, attended and advised that Ms Leckie was suspended on pay.

The Authority found that when the suspension was imposed, Alliance did not raise the concerns it relied on (including health and safety and alleged threats) with Ms Leckie, and did not give her a reasonable opportunity to respond before excluding her from work. The Authority accepted that the context (including being told to get to the office in aggressive terms and then being immediately suspended) left Ms Leckie shocked and upset.

A disciplinary meeting was held on 26 February 2018 with union representation. Evidence about what was said at that meeting was disputed. The Authority ultimately found that Alliance gave Ms Leckie an option: resign or be dismissed. The next day a termination advice form was completed showing "Voluntary", but the Authority found the resignation was strongly induced and that, in reality, the termination was a dismissal at the employer's initiative.

Unjustified disadvantage: the suspension decision

The Authority applied the statutory test: whether Alliance's actions and how it acted were what a fair and reasonable employer could have done in all the circumstances at the time. It emphasised that, even where an employer believes suspension may be necessary, good faith and fair dealing usually require the employee be told the concerns and given a chance to comment, unless truly unusual circumstances make consultation impracticable.

The Authority held this was not one of the rare cases where an employer can unilaterally suspend without consulting the employee. The failure to raise the concerns and hear from Ms Leckie before suspending her were not minor process defects, and the suspension was unjustified.

Was it a resignation or a dismissal?

Alliance argued Ms Leckie voluntarily terminated her employment. The Authority analysed the meeting evidence and the surrounding circumstances and found that Alliance had effectively put Ms Leckie to an election: resign or be dismissed. Her "resignation" the next day was the exercise of that option, strongly induced by the employer's words. The termination was therefore treated as a dismissal.

Why the dismissal was unjustified

The Authority criticised the investigation and the employer's reliance on witness statements. It found Alliance did not sufficiently investigate key allegations (including who was responsible for product falling to the floor and whether the alleged threats were supported by the statements as claimed). There were also major process defects: Ms Leckie did not receive the written allegations and witness statements before the 26 February meeting, and she was not given a proper opportunity to respond to all material before the employer reached its conclusions.

The Authority also identified a decision-making problem: the supervisor (who was closely involved and whose account was partly disputed) was involved in decision-making in a way that undermined confidence that Ms Leckie's explanations were genuinely considered. The process failures were held to be not minor, and the dismissal was not justifiable.

Remedies: compensation, reinstatement, and contribution

The Authority took a global approach to compensation (rather than splitting the suspension and dismissal) and ordered $15,000 compensation under s 123(1)(c)(i). Reinstatement was declined as not reasonable in the circumstances.

The Authority also considered contribution. It found Ms Leckie's conduct on the day (including swearing and abuse and participating in the "toing and froing" of product contrary to procedure) was blameworthy and contributed to the situation giving rise to both grievances. The Authority treated that contribution as of particular significance and applied a 25% reduction to remedies. The final compensation ordered was $15,000 without deduction. Claims for reimbursement/lost remuneration and costs were reserved for later determination.

Practical takeaways

• Suspension is not automatic: even in misconduct situations, employers usually must put the concerns to the employee and hear their response before suspending.
• "Resign or be dismissed" is dangerous: a resignation obtained by strong employer inducement can be treated as a dismissal.
• Investigation quality matters: relying on untested statements and overstating what they prove can make dismissal unjustified.
• Contribution can reduce remedies: employee blameworthy conduct can lead to a percentage reduction, even if the employer acted unjustifiably.

Read the full ERA determination (embedded)

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Source: PDF copy of the ERA determination hosted by ERA.