A quarry worker found himself between a rock and a hard place when he didn’t properly communicate with his boss that his absence from work was because he was in prison.

Robert Stowers, who was remanded in custody for five weeks in 2023 on a criminal charge unrelated to his workplace, was ultimately sacked by the Southland firm AB Lime from the quarry operator job he’d held since mid-2014.

Now he’s lost the employment case challenging that decision, despite his partner’s efforts in the days following his arrest to tell the employer that Stowers would not be at work because he was in custody.

The Employment Relations Authority (ERA) considered this inadequate because there was insufficient detail and clarity about what was happening.

The company claimed its action was justified because Stowers had been absent from work without consent, failed to communicate during his absence, and failed to engage over possible further absence given the pending criminal charges, which had undermined the employer’s trust and confidence in him.

NZME has sought comment from Stowers via the law firm which represented him. Paul Brown from PB Employment Law said an appeal was being considered.

Stowers was arrested and detained on a criminal charge at the start of Easter weekend in 2023.

He was not due at work until April 12 for a night shift but didn’t turn up and was unable to contact the firm to explain his absence.

The following morning Stowers' partner relayed a message to the night shift supervisor who passed it on to the company’s operations manager.

AB Lime’s human resources (HR) and health and safety manager tried calling Stowers on April 18 but could not get through, so left a message with his partner.

On May 1, Stowers' partner called the operations manager and told him Stowers had been remanded in custody at the Otago Corrections Facility and that his next court appearance was on May 9.

The operations manager told the ERA his overall recollection from that call was there was no certainty about when Stowers would be able to return to work.

The information was passed to HR and AB Lime began a disciplinary process.

A letter to Stowers on May 3 outlined the company’s timeline of events from its perspective and invited Stowers to attend a disciplinary meeting on May 15 if he was released from custody at that time or if he could provide written responses to the outlined concerns.

AB Lime's plant, near Winton. The Southland company operates a limestone quarry and produces lime and fertiliser blends Photo / Google Maps

On May 10, Stowers called his employer to say he was out of custody and asked if he could come back to work. He was told a process was under way.

ERA member Peter van Keulen established that Stowers had been suspended from May 11.

At a meeting on May 15, Stowers said he could not contact AB Lime while he was in custody; that his partner had done so, even though he had not asked her to; and that contact with his lawyer had happened after he had been in custody for four weeks.

Stowers would not discuss why he had been in custody but advised the employer to speak to his lawyer.

He accepted there needed to be good communication with AB Lime and understood his actions could amount to a breach of his employment agreement.

Days later Stowers received a preliminary decision from the company outlining its concerns.

Stowers' feedback in the form of a handwritten note reiterated his partner’s efforts to let his workplace know why he was absent because he was unable to contact AB Lime himself, and that he would like to keep his job.

AB Lime said in its final decision, set out in a letter to Stowers on May 23, that “the serious misconduct and irreparable breakdown in trust and confidence meant the appropriate disciplinary sanction was dismissal without notice”.

Van Keulen found that AB Lime had been sufficiently thorough in the disciplinary process.

He concluded that, overall, it was what a fair and reasonable employer could have done in all the circumstances and was therefore justifiable.

In terms of the substantive justification, van Keulen said it was clear that AB Lime had two issues with Stowers’ conduct. He had not attended work for almost five weeks and his inadequate communication during this time meant AB Lime had no clarity about why he was absent and for how long it would be.

Neither did AB Lime have any guarantees that Stowers would be able to attend work in the future without further absence and, importantly, if further absences occurred it had no confidence that Stowers would tell them why.

“In short, AB Lime had an employee who went missing for nearly five weeks without properly explaining why at the time and it had genuine concerns this could happen again if it continued to employ that employee.

“In the circumstances dismissal without notice was appropriate,” van Keulen said.

AB Lime general manager Steve Smith told NZME the company did not wish to comment.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.