What should I do if I think my employee has committed serious misconduct?

Employers were recently issued with a timely reminder to ensure serious allegations against employees are properly investigated prior to taking any disciplinary action.

In West v Kowhai Intermediate School Board of Trustees, the Employment Relations Authority considered claims of unjustifiable dismissal and disadvantage by a school teacher, Mr West.

West had been an employee at Auckland’s Kowhai Intermediate School for 27 years when he was accused of swearing at, and inappropriately touching, several students in his class. West admitted he had sworn in class but emphatically denied any of the alleged touching.

The School suspended West on pay while it carried out an investigation into the allegations, which resulted in West’s dismissal. West was charged by Police with seven counts of indecent assault but later acquitted.

West’s claims came before the Employment Relations Authority more than four years after the termination of his employment. The Authority had to determine whether the School’s decision to dismiss West, and the procedural steps taken in the lead up to this decision, were the actions of a fair and reasonable employer in all the circumstances.

In upholding West’s unjustifiable dismissal claim, the Authority made the following important findings about the defective disciplinary process the School carried out:

• The failure to offer West the opportunity to have a support person present when being interviewed by the School about the allegations against him was a procedural defect.
• The allegations against West were not put to him in writing for his consideration prior to his dismissal. This was a breach of the School’s duty to provide West with all information relevant to the continuation of his employment in circumstances where the School was considering dismissal.
• The School’s decision to hold a disciplinary meeting, which West chose not to attend, prior to the completion of the criminal investigation into the allegations against him was inappropriate.
• The School placed inappropriate reliance on unrelated conduct on West’s part approximately 15 years earlier as well as a final warning the School had previously issued him that had long since expired. This, the Authority considered, suggested that the School had not entered the disciplinary process with an open mind.
• The letter terminating West’s employment made no reference to his strong and consistent denial of the inappropriate touching allegations against him. This suggested the School had failed to properly consider West’s response to the allegations.

The Authority also found that West had been unjustifiably disadvantaged on the basis that the suspension he served included a condition that he was not to communicate with staff or anyone else in the community about the allegations against him during the School’s investigation. This condition, the Authority said, had the effect of isolating West from much-needed support and constituted an unjustifiable disadvantage.

The consequences of the Authority’s findings for the School were significant. West was awarded lost wages for a total of 39 months from the date of his termination. The School was also ordered to pay West $45,000 for the hurt and humiliation he suffered as a result of the School’s actions and a further $45,000 towards his legal fees.

While employers are obliged to take allegations of serious misconduct seriously, they must not act to an employee’s detriment without having reasonable grounds following a full and fair investigation. As the Authority’s decision demonstrates, employers who get things wrong in this space may face hundreds of thousands of dollars of exposure.

Employers who want expert advice on handling employee disciplinary issues should contact Jaesen, Ruth or Jordan.