condemned without evidence – unfair process and th

Condemned without evidence – unfair process and the test for justification revised

Chief Executive of the Department of Corrections v Tawhiwhirangi Employment Court, 13 September 2007

The case centred around an event in February 2006, in which a prisoner in Rimutaka Prison asked Principal Corrections Officer Tawhiwhirangi to bring cellphones and drugs into the prison. When Mr Tawhiwhirangi refused, a verbal confrontation took place and Mr Tawhiwhirangi considered it necessary to physically encourage the prisoner to return to his cell. Another officer entering the situation considered it had become threatening and initiated procedures to control and restrain the prisoner. As the prisoner had sustained some injuries, the Department carried out an operational inquiry which recommended the two officers be further investigated. Following an investigation that took some 11 months, the second officer was exonerated, but Mr Tawhiwhirangi was found by the Department to have assaulted the prisoner, in the form of a push and two slaps, whilst exiting him from the office and was dismissed for serious misconduct. His dismissal was found to be unjustified in the Employment Relations Authority and he was reinstated to his position. The Department appealed to the Employment Court.

This case was not an unusual one in respect of its facts or the law applicable in respect of unjustified dismissal. However, the case has solidified and clarified the s103A test, that an employer must act fairly and reasonably in all the circumstances, and demonstrated how employment investigations, particularly the requirement that they are conducted fairly, must be taken seriously.

It has been made clear that the fair and reasonable employer is judged against its circumstances, including relevant factors such as the size of the workplace, the number of employees employed, the nature and quality of the resources available to the employer (including access to specialist human resources advice), and any other statutory or public interest obligations on the employer. Judge Shaw noted how this test is not unlike the standard expected in negligence suits; what is expected of the employer will not be an unattainable standard that guarantees against harm in all circumstances, but they are expected to apply their reasonable skill and knowledge to ensure as far as possible that they are acting fairly and reasonably. This standard will apply to all aspects of an employer’s decision and its decision making process. Further, Judge Shaw reiterated that the requirement of reasonableness and fairness under s103A will be read in light of all of an employer’s legal obligations. Judge Shaw particularly noted how compliance with the good faith obligations set out under s4(1A) will be required of a fair and reasonable employer:

“An employer must be responsive and communicative. When investigating serious allegations made against an employee it cannot act as a non-communicative observer and critic. Long-standing requirements of fair dealing require significant conclusions, including tentative ones, to be articulated to the employee.”

In fact, fairness and reasonableness will be informed by all statutory or legal obligations that an employer may have. In the case of the Department, who operate under the Corrections Act 2004, the failure to consider whether the officer was justified in his actions under s83 of the Act meant the Department had not acted as a fair and reasonable employer.

The case thus highlights how vigilant the fair and reasonable employer must be in respect of insuring that employment investigations are full and fair. Judge Shaw reiterated in her judgment the now well-established requirement that an employer must:

“give an employee notice of the specific allegation of misconduct and any likely consequences; a real opportunity for the employee to attempt to refute the allegation or to explain or mitigate his or her conduct; and an unbiased consideration of the employee’s explanation in the sense that that consideration must be free from pre-determination and uninfluenced by irrelevant considerations.”

Some things to remember when carrying out employment investigations:

follow any procedures you have put in place. Deviation from these in any way must be for a very good reason, and articulated to the employee.

make sure you’ve correctly identified all the issues at play and have addressed them adequately – for instance, an issue like justification may be relevant to whether the conduct in question constitutes misconduct, or how serious it may be, and needs to be investigated thoroughly.

be clear and specific about allegations – clearly formulate how, when and what was alleged to have happened, and importantly what is considered to constitute the misconduct and why. Articulate this to the employee in writing.

ensure the investigator and the decision-maker are independent.

ensure that all relevant witnesses are interviewed.

be consistent with questions and information presented to all witnesses interviewed.

ensure all information collected from witnesses is provided to the employee under investigation, as well as any other information being considered.

keep an open mind when listening to explanations. Avoid making any assumptions.

if you are coming to a conclusion or an inference about information you have received, inform the employee of the view you are forming and give them and opportunity to refute or correct it.

if you need to make decisions as to credibility, you must have clear reasons for doing so.

the "utmost caution" should be exercised in interpreting aids such as video footage or other data. Use of expert opinion in respect of any such aids should also be treated with caution and given the appropriate weighting.

where the allegation is serious then the evidence in support of it must be as convincing as the charge is grave.

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