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Proposed law changes will give added weight to employer's loss of trust

 

THE DOMINION POST - SATURDAY, 14 AUGUST 2010


A recent Employment Court decision upheld the reinstatement of a court employee, despite finding she was guilty of serious misconduct.

The decision highlights the difference between the current test for dismissal and three of the new laws proposed by the Government that will alter the test and this area of the law generally. Under the proposed changes this decision would almost certainly have gone the other way.

The employee was the manager of courts and registrar of the High Courts for her area. Her nephew was charged with assaulting his former partner. The registrar became involved in the nephew's prosecution, breaching several of her employer's policies. She was dismissed for serious misconduct.

The registrar accessed her nephew's file through the court computer system and provided updates to the nephew's lawyer on 10 occasions, at the lawyer's request. She was involved in an incident to do with her nephew's bail terms. The terms had been varied with police agreement to allow him to visit another town, but where the complainant lived, for a significant family event. The variation was not recorded electronically on the court record system accessible to the police.

Police arrived at the family birthday event intending to arrest the nephew. The registrar telephoned the deputy registrar responsible for criminal matters, and asked her to provide the police with a copy of the bail bond, including the variation.

Finally, and perhaps most significantly, three days before the nephew was due to be sentenced, the registrar rang the complainant. She asked who had written the victim impact statement, the complainant or the detective responsible for the prosecution of her nephew. The complainant said she had. The registrar asked why she was intending to put forward the original victim impact statement rather than a later more friendly one, which played a role in her nephew's pleading guilty. The complainant's response was that the nephew had hurt her and that she was taking a long time to get over it. She said the nephew deserved to be punished. The registrar said she was surprised at the change of approach, as she understood the complainant and the nephew were getting on well.

The next day the complainant's father complained to the registrar's employer. The employer decided the call to the complainant amounted to serious misconduct and that access to the computer system involved misconduct. Trust and confidence had been lost. The registrar was summarily dismissed.

The registrar accepted her call to the complainant was serious misconduct and her access to the ministry's computer database amounted to misconduct. However, she argued dismissal was not the appropriate remedy.

The court thought that accessing the database to advise the nephew's lawyer on status issues was common practice and was not favouring a relative. It felt that accessing the database to prove to the police the varied bail conditions for the nephew was ameliorated by the registrar's concern to avoid her nephew being wrongly arrested and wrongfully imprisoned. The court referred to avoiding wrongful imprisonment as of paramount importance and something that should have been given more weight by the employer.

The court applied the test laid down in the Employment Relations Act 2000. It held that a fair and reasonable employer would not have concluded that it had lost trust and confidence in the registrar, if all the circumstances were taken into account. The decision to dismiss summarily was not justified nor was the employer's decision to remain in opposition to the registrar's reinstatement. 

The court felt that submissions by persons knowledgeable about the registrar's performance and duties, and especially about the trustworthiness of her assurances about future conduct, were not given proper weight.

A proper inquiry was not made. Had the employer considered the views of other knowledgeable persons, along with the registrar's insight into her misconduct and her commitment to not reoffend, it may have responded differently.

A fair and reasonable employer in the circumstances would not have concluded reasonably and objectively that there was such a loss in confidence, both then and in the future, that the registrar had to be dismissed.

This is a significant decision. The Labour Government changed the test for dismissal, making it an objective test looking at what a fair and reasonable employer would have decided both in terms of the dismissal and the sanction. The new test will be what the objective employer could have done in all the circumstances.

The court in this case looked closely at the processes of the employer, something the new legislation proposes not to do. In fact the Government has said that employer processes will not be subject to pedantic scrutiny. Rather, the merits of the employer's decision rather than complete procedural correctness will be important. The proposed change gives more power and latitude to the employer and less power to the court.

Reinstatement will no longer be the primary remedy in unjustified dismissal cases.

The case involving the court registrar is one of those few cases where serious misconduct is accepted as having occurred and the sanction of dismissal has been decided by the courts as inappropriate. National's three proposed changes to the law will have a significant impact on similar cases in the future.

Readers will have a view on whether the employer should have more say over the sanction against those correctly found guilty of serious misconduct.

Should the employer's view that it has lost trust and confidence be given more weight? Or should the wider interests of justice prevail?

The Government's position clearly favours employers having more control.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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