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Natural justice in the workplace

17 February 2015

Employment law is replete with stories of bad behaviour.

A common mistake is to leap to dismissal without a proper investigation. Two recent cases in New Zealand give some guidance on this matter.

“W” was employed as a teacher’s assistant at a kindergarten from February to June 2014.

Issues first arose in April 2014 when the service manager of the kindergarten learned that someone had been using her name to obtain drugs. The service manager investigated the matter and reached the view that someone related to W was the one using her name.

The service manager also suspected that W attended work on three occasions “stoned”. 

The kindergarten called an emergency hui. During the hui, the service manager alleged that W attended “totally stoned out of her brains” at the hui. W denied the allegations.  However, she admitted that she did consume synthetic drugs out of work.

The service manager arranged a further meeting with W to deal with the issues that had arisen and to work through options to help W. Unfortunately things evidently did not go well and W walked out of the meeting. Shortly after the meeting, W went on sick leave and later resigned. 

W was aggrieved by the actions of the kindergarten and raised several personal grievances because of the process followed in respect of her alleged drug use.

The Employment Relations Authority identified a number of breaches on the part of the kindergarten. In particular it found that the kindergarten did not conduct a thorough investigation into its concerns and instead relied only on the service manager’s opinion to conclude that W was ‘stoned’. The authority was critical that W was not given an opportunity to bring legal representation to the hui.

Furthermore, the options put to W at the meeting were in fact conclusions that had been reached without input from W. 

Despite that the kindergarten genuinely believed W was stoned, W’s employment was put in jeopardy unjustifiably as a result of the kindergarten’s actions. She was therefore awarded $2000 in compensation and a small contribution to her legal costs.

Another recent case involving Rimutaka prison guard, Willie Alatipi, also highlights the requirements for an employment investigation. A prisoner accused Alatipi of beating him.

Both police and Corrections investigated. Police concluded their investigation and advised no further action would be taken. However the Corrections investigation concluded that Alatipi had assaulted the prisoner. Alatipi was dismissed.

Alatipi challenged his dismissal all the way to the Employment Court.

The court was critical of the Corrections investigation. Corrections did not interview other prisoners or a colleague of Alatipi’s who was on duty when the alleged beating occurred. Also’ it was “disturbing” that the investigator “appeared to passively accept everything” that the prisoner said without any challenge or follow up questions.

The court ultimately concluded that the Corrections Department did not have a sufficient and reliable evidential basis to conclude Alatipi assaulted the prisoner. The decision was therefore beyond what a fair and reasonable employer could have reached.

Mr Alatipi was reinstated to his former position. He was also awarded three months’ lost wages and $20,000 compensation.

Employers who may want to dismiss an employee hastily would do well to take heed from the cases of W and Alatipi. No matter the circumstances, a full independent investigation which complies with natural justice is the answer.

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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