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When giving the boot, tread carefully with new hires

14 April 2015

Sports fans will be familiar with Mils Muliaina's great rugby qualities. Muliaina was born in Samoa but raised in Southland. He played for the Blues and then the Chiefs. He is one of our outstanding fullbacks and one of a handful of All Blacks to play over a hundred test matches. He ended his career on a high, being part of the All Black Team that won the World Cup. He currently plays for the Irish club Connacht.

Readers will have been shocked to read of his arrest after a match in Gloucester. He was arrested on April 4 after a 19-year-old Cardiff woman made an allegation of sexual assault. 

Unfortunately for Muliaina, television cameras were at the venue and he was widely filmed being arrested and taken away. Images were transmitted worldwide. He is out on bail but no charges have yet been laid. 

The media say Muliaina is devastated and shocked by what has happened and that he denies all allegations of wrongdoing. He has since returned to Ireland but must return to Wales in July.

What is interesting from a legal point of view is that just a week before his arrest he signed a contract to play rugby with the Italian side Zebre.

What will be of interest to readers is the legal issue of the rights of employers and employees when a person has signed a contract to work but has not yet begun working.

Is the person in a weaker position in this situation?

Our Employment Relations Act treats people who have accepted an offer of employment but have not yet started work as employees. Muliaina would therefore be considered an employee of Zebre.

This has far-reaching consequences.

The issue was tested in a case involving Griffin's foods and employee Sanjeshi Chandra.

Chandra was offered a position as a manufacturing co-ordinator with Griffin's foods. She accepted the offer but had not yet accepted her employment agreement.

It may come to a surprise to readers that, about the same time, Griffin's was undertaking a review of its senior management structure and decided that the position accepted by Chandra was no longer necessary.

She was advised that the job was gone and that she was surplus to requirements. 

No proper process was followed.

Chandra sued Griffin's for unjustified dismissal and won. For the purposes of our legislation, Chandra was an employee and because there was no fair process she was entitled to remedies.

She got three months wages and $5000 compensation.

Employers from time to time do sign up a new employee but subsequently hear bad stories about the employee, perhaps from an earlier employer.

On other occasions, particularly in the government, people start work conditional on certain requirements being met.

Examples would be credit or security checks proving favourable, a work permit or visa being granted, a security clearance being issued by the Security Intelligence Service and so on.

Often security clearances take some time to come through because of a backlog of vetting within the Security Intelligence Service.

What can an employer do where unfavourable information comes to light? Whether a person has just signed up or has commenced work on a conditional contract, the employer should follow a fair process.

It is not clear whether Muliaina’s employment with the Italian club is in jeopardy because of what allegedly happened in Cardiff.

If he had been engaged to play for a new franchise in New Zealand but not had yet started playing when this incident is alleged to have happened, the employer would have to tread carefully.

Firstly, nothing has been established against him.

Regardless, Muliaina could argue his skills as a rugby player are unaffected by any of this, and it should not affect his continuing to play.

On the other hand, a new franchise might argue that their players were role models to people in the community, particularly the young, and their trust and confidence in him had been destroyed.

Regardless, a fair process would have to be followed and the fact employment had yet to actually begin would make no difference.

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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