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It's not cricket without right to fair trial

18 February 2014

Readers have been treated to some great cricket over the summer with the Black Caps on top of their game.
Cricket has also been making news off the field with match-fixing and drinking allegations made against various former and current players.
Three former New Zealand Cricketers, including all-rounder Chris Cairns, are reportedly the subject of a match-fixing investigation being conducted by the International Cricket Council (ICC).
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Cairns is very much a New Zealand hero and comes from good stock. His father, Lance, is one of yesterday's heroes. He managed to turn several key matches with mighty hits from his famous Excalibur bat.
The investigation into Chris Cairns is being carried out by the ICC's anti-corruption and security unit. English police officers have reportedly been in New Zealand conducting inquiries although Cairns claims they did not speak to him. It is possible that criminal proceedings could follow.
Undoubtedly these circumstances are very upsetting for Cairns. He has adamantly denied any wrongdoing, however his life has effectively been put on hold. Incredibly he is yet to receive any formal communication from the ICC confirming the nature of the investigation or any allegations against him.
Cairns recently commenced a new career as a cricket commentator with Sky TV.
The reports of the investigation broke in December, during his first test match as a commentator.
So what was his employer, Sky TV, to do?
Sky TV appears to have acquitted itself well. Cairns is certainly entitled to be treated by his employer as being innocent in the absence of proof of wrongdoing. Despite that, there was likely to be some awkwardness about him commentating while reports of the investigation were swirling around in the international media.
The end result was that Cairns stood down from his duties.
He remained on paid garden leave until his contract expired last week.
None of this is ideal but it seems the parties took the most sensible approach to the predicament they found themselves in. Cairns for his part has said Sky TV were supportive.
Readers may remember the story of Guy Hallwright. He was involved in a well-documented road-rage incident in 2010. He was charged and convicted quite a long time later of causing grievous bodily harm with reckless disregard. He was subsequently dismissed for bringing his employer, Forsyth Barr, into disrepute. However, the important thing is the employer did not act rashly. It reserved judgment on Hallwright's actions until the criminal trial was concluded.
Up until that point, he was on paid garden leave.
Sky TV and Forsyth Barr both appear to have behaved as a good employer despite being in particularly sensitive situations.
They enabled the affected employee to protect their position in a criminal context and to receive a fair trial accordingly.
That is not always the case as shown when the New Zealand Defence Force locked horns with its then employee, Michael Sharpe.
Sharpe was a civilian employed by the Defence Force to manage its Navy Adventure Training Centre.
In his role, Sharpe could authorise equipment purchases up to $5000.
In September 2008, concerns were raised about the purchase of a significant amount of camera and photographic equipment.
The Defence Force subsequently discovered a website, operated by Sharpe, titled Tricky-Micky Images Michael Sharpe Photography. The Defence Force suspected Sharpe was involved in fraudulent activity and promptly notified the police.
An employment investigation was also commenced.
Sharpe was charged with dishonesty offences. However, the employer continued its investigation into matters which could have affected Sharpe's right to a fair trial. Sharpe obtained an injunction in the Employment Relations Authority, stopping the Defence Force from proceeding with the investigation.
The authority considered there to be a risk information gathered in the employment investigation could prejudice Sharpe's right to a fair trial.
Unquestionably the approach of Forsyth Barr and Sky TV was sensible. I accept, however, that approach may be difficult to finance for smaller employers.
It won't always be necessary for an employer to put an employee facing criminal charges on paid leave. It is important though that employers refrain from prejudging the outcome of a criminal investigation and it is even more important that those accused of an offence get a fair trial.

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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