Employers need to ensure clear communications

The Dominion Post- 4 October 2008

The further north you go, the more culturally diverse New Zealand has become in the past 30 or 40 years.

In Wellington, readers will be aware of the migrant workers who drive our taxis and serve us in our supermarkets, restaurants and fast food outlets.

Indeed, walking past collections of drivers at some of the taxi ranks is a bit like visiting the United Nations. Just as giving directions to a driver can be a challenge so can communicating with migrant workers or any employee with different communication abilities in an employment law context.

An employer dealing with employees in workplace situations must go the extra mile to overcome any barriers to communication with their employees. They must ensure the employee fully understands what is said. This was highlighted recently in the dismissal of a profoundly deaf laundry assistant who allegedly falsified her timesheets.

Nicola O'Neill was employed as a laundry assistant by Ilam Lifecare for 12 months. She was dismissed for leaving her workplace earlier than rostered and earlier than recorded on her timesheet without authorisation despite having work outstanding. She did this on two occasions.

She took a case to the Employment Relations Authority which recently reached its decision. Ilam Lifecare was an aged-care facility. Complaints arose about Nicola's performance. Allegations included that she deliberately tried to mislead Ilam Lifecare by falsifying her timesheet on two occasions, one by 15 minutes, the other by 25 minutes. Further allegations of failure to comply with policies and procedures and failure to follow instructions were interpreted in light of the falsification claim.

Ilam Lifecare investigated these allegations, and met Ms O'Neil to discuss the incidents, providing an opportunity for her to explain her actions.

However, crucially, no interpreter was present to assist Ms O'Neil and, though she provided explanations, some could not be understood by the investigating employer, and what was understood, was discounted.

The Employment Relations Authority found that the falsification of timesheets in the situation was not sufficient to amount to serious misconduct, and instead warranted only the issuing of a warning. Though, in normal circumstances, the intentional falsification of time records can amount to serious misconduct, the authority was unable to find intention on Ms O'Neil's part. The authority awarded $4000 compensation for humiliation and injury to feelings and $2500 in lost wages.

Ms O'Neil's deafness was an important factor that should have been considered by the employer. The authority commented that a fair and reasonable employer would not have felt confident after the meeting that Ms O'Neil had had a proper opportunity to explain or make herself understood. This was particularly relevant considering that the meeting notes recorded that no one could understand Ms O'Neil's explanation. A fair and reasonable employer inquiring into allegations against an employee of early departure from work would have wanted to understand Ms O'Neil's explanation before making a decision on her actions.

The Employment Relations Authority examined the relationship between Ms O'Neil and her supervisor. It was alleged Ms O'Neill did not do as she was told. The authority considered that the employer should have investigated whether Ms O'Neil's profound deafness led to the communication problems between the two. It was unclear whether Ms O'Neil understood the directions she was being given. It is hard to follow an instruction that you do not understand.

It is clear that Ms O'Neil was partially to blame in this situation. Allowance was made for this. The manner in which the problem was addressed by the employer did concern the authority. Given the communication barriers, it was imperative that the employer make an extra effort to understand the worker's side of the story, and accommodate her needs. The authority used interpreters to hand sign for Ms O'Neil at the hearing. This provides an indication of the communication barrier which was present.

Where a worker is entitled to a hearing, it is fundamental that what they are saying be understood by the decision maker. That did not happen here. It does not matter whether these are caused by a disability, as in the O'Neill case, or by language or cultural barriers. Appropriate steps must be taken to ensure that proper communication occurs. This is fundamental to a fair hearing.

Peter Cullen is a partner at Cullen - the Employment Law Firm

Email: peter@cullenlaw.co.nz