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Balance is key to employment law

27 October 2015

Readers would have read earlier this month of Mils Muliaina's good news.

In April this year Mils Muliaina was arrested in Gloucester after a European rugby match for allegedly groping a young woman's bottom in a Welsh night club. Live television captured his arrest and him being led away by Police to a van.

The sexual assault charges were dropped by Police last week as there was not enough evidence to provide a realistic prospect of a conviction.

Muliaina had always denied the allegations and when he heard the charges had been withdrawn commented "my immediate thoughts were with my son. He should never have been through what he went through."

Muliaina said that while he understood the police had a job to do, he found the manner in which he was arrested difficult to understand.

His agent Simon Porter commented that it was simply unnecessary to drag him off a rugby pitch under intense media scrutiny. Porter alleged it was demonstration of police grandstanding at its worst.

Clearly prosecuting someone is a serious matter and people suffer embarrassment and anxiety whenever they are charged with criminal offences. There is often fall out for the person and the presumption of innocence does not protect a person from the prejudice of the public.

Clearly disciplinary processes in employment can have a similar effect, although any negative impact may be more contained than what is seen in criminal matters.

Of course, an employer has a right to justifiably conduct disciplinary processes, and emotional turmoil is an inevitable consequence of these processes. However, the courts are well aware of the harm disciplinary processes may have, even where an employee is ultimately vindicated. Employment law attempts to mitigate any unnecessary emotional harm by ensuring minimum standards are followed for disciplinary processes.

Employers may fall foul of these standards when suspending an employee, and this can cause avoidable suffering.

A key case exploring the harm of an unjustified suspension pre-dates our employment legislation.

Kenneth Birss joined the New Zealand Probation Service in 1967. In 1982 the Secretary of Justice gave him notice of various employment allegations made against him under the State Services Act. These included making derogatory comments about management to junior staff and people outside the Probations Office , and accusing another staff member of entering the country illegally and making a false declaration.

Another charge was that Birss had made phone calls purporting to be someone else when arranging good and services to be provided to that other person without their knowledge or permission. It was also said that he failed to regularly attend staff meetings.

Extraordinarily, 19 months after the charges were made against him, the Secretary of Justice suspended Birss.

However the fact that he was left in employment for 19 months and not given a hearing before the decision to suspend was fatal. The Court of Appeal granted an injunction and the suspension was overturned.

Justice Richardson commented that suspension was a dramatic measure which if more than momentary must have a devastating effect. The prejudice caused to an officer can never be assuaged even if he is ultimately vindicated at the disciplinary hearing. The Court was concerned about the adverse effect on the Officer including loss of entitlement to perform his duties, as well as profound emotional and social effects.

Of course suspension is often appropriate.

An employer may have well founded concerns about the harmful effect of a particular employee if they are left in the job.

Justifications for the suspension can include protecting the integrity of an ongoing investigation or ensuring that health and safety is maintained. If the suspension is taken promptly and the employee is given a fair hearing prior to the decision being made the employer will be in a much stronger position than in Birss.

As is often the case in employment law, it is a question of balancing the factors both for the worker and the employer in reaching a decision which is justified in all the circumstances.

Hopefully the announcement from the Welsh police will enable Muliaina to enjoy the rest of the Rugby World Cup free from the stress he has been carrying since last April.

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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