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Cairns should know who's making the shots

27 May 2014

Cricket came to New Zealand from England. Readers who have toured the English countryside will, like me, have seen the young players practising on the village green. The sound of willow meeting leather is part of English folklore.

The culture that cricket emerged from is one of decency and high standards. But the "gentleman's game" seems to have taken a turn for the worse.


Earlier this year, I wrote about Chris Cairns, who stood down from his role as a commentator with Sky Television after reports came out that he was being investigated by the International Cricket Council. Well, it appears there is now another twist in the story.

Just over two weeks ago, it emerged former New Zealand cricketer Lou Vincent gave evidence to the ICC, admitting he had been involved in match-fixing. Vincent's evidence has gone into explosive detail about the extent of match-fixing. He claimed he was taking instructions from a former international star.

New Zealand Cricket captain Brendon McCullum also gave evidence, which was leaked to the press. McCullum has reported that a "Player X" on two occasions attempted to entice him into fixing. McCullum rebuffed these approaches.

It was first reported in November that Cairns was under investigation by the ICC. He has since released a statement on the matter. He believes he may be the "Player X" McCullum refers to but denies all allegations in their entirety. He said he had repeatedly asked for McCullum and Vincent's statements so he could respond but that the ICC did not provide them.

There are reports suggesting that evidence about "Player X" has also been given by other unnamed individuals. It is not clear if their identities will be revealed publicly or to any of the individuals under investigation.

This is a remarkable inquiry not only because of the gravity of the allegations but also the implications they may have for cricket and the reputation of New Zealand athletes.

Cricket has come a long way from the village green, with match-fixing allegations and huge sums of money now involved. The ICC's investigation has been going on for some months already and it is unclear when a final outcome may be delivered.

Two lessons can be taken from the ICC investigation and applied to employment investigations in New Zealand. The first is that investigations need to conclude in a timely manner and not drag on indefinitely. The second is that the identities of the accuser and other witnesses need to be disclosed to the person who is being investigated.

The New Zealand case between Graham Parker, a restaurant manager, and his employer, Spotless Services Ltd, is helpful.

Over a period of several years, some staff had made complaints about Parker's conduct in the workplace. The allegations included that Parker had been consuming, and was under the influence of, alcohol while on duty.

Parker was given a chance to respond to the allegations. The employer, however, refused to identify who had made them. Parker denied the allegations but declined to explain further. He was dismissed.

Parker challenged his dismissal in the Employment Court and, in particular, Spotless' failure to provide the identities of the staff who had complained or imparted information.

Spotless argued it had given assurances to the complainants that their identities would remain confidential, and that there were important privacy considerations at stake. The Employment Court did not agree. It held that the identities of complainants were key to the fairness of an investigation.
Parker had a right to challenge the reliability of the complaints and information that had been provided. However, for him to do so, he needed to know the identity of the complainants. Parker's dismissal was therefore found to be unjustified.
The ICC inquiry may not be an employment investigation as such. However, those affected, like those affected by employment investigations, are entitled to natural justice. It seems fair that they know the identity of those giving evidence against them and the case gets a timely outcome.

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

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