Nicol v Canterbury Concrete Cutting NZ Limited [2018] NZERA Chch 180
Mr Nicol was terminated from his employment for secretly recording the disciplinary meetings whereby he was accused of saying some not so nice things about his employer. Current events overtook the original accusations once the employer found out that a prior meeting had been secretly recorded.
It was determined that a fair and reasonable employer could not terminate an employee for secretly recording a meeting, thus the termination in the eyes of NZ employment law was unjustified. However, it was also determined that such a secret recording of a meeting in an ongoing employment relationship was a breach of the employee's good faith obligations and as such the remedies awarded were reduced by 25% for this behaviour of secretly recording the meeting plus a further penalty of $2,000 was imposed. The net effect in adding the value of this deduction plus penalty cost the employee $11,292.21.
Notwithstanding this loss, the amount the employer had to pay the employee for the unjust termination was just under $28,000 being lost wages of $9,126.64 plus compensation of $18,750. Of course the two biggest winners of the day were most likely the representatives, as most of us love these days in court despite the massive amount of work involved, and being paid for it is just a bonus.
Cases like this should have settled at mediation, but no doubt once side (if not both sides) would have wanted to stand on their principles, overlooking the age old saying of, "Principles cost cash"
Takes out from this case.
- Unless conversations are intended to be confidential or off the record conversations, then recordings of them will most likely be admissible.
- If you are going to record a meeting with your employer then let them know in advance, otherwise you are breaching your good faith obligations.
- Employers should always seek advice prior, if they think that they may end up terminating someone through a disciplinary process.
- At mediation focus on what is best for you long term, not what is worst for the other side now.
Interested in more info on disciplinary meetings?
Employee Disciplinary Meeting Information
Employers Guide to Disciplinary Meetings
danny.gelb@employmentlaw.net.nz
0800 HELPME (0800 435 763)
