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Old investigations don’t have to stay in the hangar

August 2013

It is a well-founded principle of criminal law that someone cannot be tried twice for the same crime. But how does this fly in an employment context? A recent case involving the dismissal of a Pacific Blue employee with a fondness for ‘high’ times delves into this murky issue.

The Facts
B, whose identity has been suppressed, was a Pilot with Pacific Blue. Over a somewhat turbulent 16 month period of employment, he was involved in a number of incidents which attracted the attention of his employer for the wrong reasons.

In January 2009 B and a number of crew members got a little too rowdy at a hotel bar in Potts Point, Australia. Pacific Blue found out about the incident but due to a lack of evidence, the matter was not advanced beyond the initial stages. A number of other incidents followed although no formal disciplinary action was ever taken against B.

The key events that ultimately brought about B’s crash landing occurred on the morning of 10 June 2009.

Following a late-night flight, B, and four other crew members, went back to his house for a spa and a few drinks. After several hours (and drinks), B offered each of his guests a pill. One of the guests enquired whether or not the pills were legal to which the Pilot replied they were. All took the pill.

Three of the guests felt no ill-effects. However one, referred to in the case as N, woke up at B’s house with no recollection of what had happened. While walking home, N collapsed and was taken to hospital.

N’s parents were naturally upset with this turn of events and contacted the Police to express concern about the nature of the pill their daughter had been given by B. Pacific Blue was also informed about the incident and promptly commenced an investigation into the events.

When interviewed by Pacific Blue, B accepted that his employer had valid safety concerns, that supplying a pill was not a good look, and that he had caused the company a “lot of grief”. He claimed that the pill given to N was merely a vitamin pill and that a toxicology analysis of N conducted while she was in hospital proved this. The toxicology report was not made available to Pacific Blue despite attempts to obtain a copy.

Following further investigation, B was given a final written warning, which you would think would signal the end of the matter. Not so.

Several weeks later, Mr Lowe, the manager who had led Pacific Blue’s investigation, was contacted by the Police and informed that there were a number of text messages which suggested that B was involved with drug dealing. As the Police were still investigating into the spa-pool incident, Mr Lowe was asked not to “tip [B] off”.

Around this time, Mr Lowe was also made aware that the toxicology report B had referred to in fact indicated that there were trace levels of BZP, an illegal class C drug, in N's system.

Following a Police search of B’s house, Mr Lowe wrote to B and informed him that he was aware of the Police investigation. A meeting with B was quickly convened and reference was made to new information received from the Police. It was decided that pending the outcome of the police investigation, B would be suspended on pay.

Nearly two months after B’s suspension, the Police made the decision not to lay criminal charges against B due to a lack of evidence. However, having finally obtained a copy of the toxicology report, Pacific Blue chose to continue its investigation.

B was asked to comment on the report that had been provided and explain how it could be reconciled with his statements during the original investigation. He was unable to provide an adequate answer. Pacific Blue informed B that it had lost trust and confidence in him and had decided to terminate his employment.

Decision
B raised a personal grievance against Pacific Blue alleging that it had breached a number of duties and that he had been unjustifiably dismissed. Most notably, he claimed that the investigation that led to his dismissal should not have been re-opened and that his suspension was unjustified.

The claim was first heard in the Employment Relations Authority which held for Pacific Blue. B challenged the decision in the Employment Court to no avail.

While it was accepted by the Court that Pacific Blue could not treat the earlier incidents as misconduct, Virgin’s focus was on the Pilot’s failure to be open and honest. And while judicial or tribunal decisions cannot be reopened, the same restriction does not apply to disciplinary processes.

In regard to the suspension, the Court found that Pacific Blue could not be criticised for adopting a conservative, risk adverse approach to matters relating to public safety. Furthermore, when the new evidence, namely the full toxicology report, was made available to the Airline, it would have been open to criticism given its broader responsibilities and the nature of its industry if it had not raised the fresh concerns with the Pilot.

Significance
This case is a timely reminder that a disciplinary investigation is not a judicial process. Employers have the ability to reopen investigations and particularly in the case of safety-sensitive roles, may be justified in taking extra precautions which in an ordinary context might not be justifiable.

Reopening an investigation into past wrongdoing won’t always be justifiable. But if new information comes to light, employers are well within their rights to take another look at a case they might have thought was closed.

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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