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Investigating Misconduct? Play by the Book
This week heralds the occurrence of what some in the world would regard as one of the most important events of the year: Superbowl.
To many New Zealanders - particularly rugby purists - there is little attraction in a game where all the participants are prevented from really hurting each other because of elaborate outfits with pads and helmets. What's more - what attraction is there in a game that requires so much organisation, and stops every ten seconds for a break?
Those rugby purists are, however, missing the point: rugby has an air of honesty in its simplicity - American football is more like employment law. You know what you want to do, but there are a number of challenges to overcome before you can really hurt your opponent. In short, you can't really hurt someone in an employment relationship (at least without severely breaching your legal obligations). And as for all those breaks - one only has to reflect upon the prospect of four weeks' annual leave (together with the myriad of other vacations allowed under New Zealand law).
But there is another aspect of American football that holds particular appeal.
If a player commits a foul during the course of play, the official throws something called a "flag". This is something of a misleading description, because the object is hardly a flag at all - it seems to be nothing more than a large handkerchief twisted around a small beanbag. Perhaps because the game is so complex, there are (unlike rugby) a number of officials - each charged with scrutinising a different aspect of the game - and each armed with a "flag".
Once thrown on the field, the flag requires a ruling to be made about the misconduct that the official has observed. Curiously, and perhaps consistent with the culture of a country which considers itself to be the greatest democracy in the world - a coach has a limited ability to "challenge" such a ruling, by requiring the match referee to review the play that resulted in the "flag" by watching a video of the alleged incident. It seems, however, that officials are generally pretty reliable - because successful challenges are comparatively rare.
Discipline in employment matters is, at least in concept, no different - and employers would do well to view themselves as match officials - whose decisions are susceptible to challenge. Their ambition, of course, should be to have a record on such challenges as admirable as those of the match officials in American football.
A recent decision, Roach v James Family (a division of Presbyterian Support) (Unreported, Employment Relations Authority, Auckland, 21 November 2003), provides an excellent example of how an employer should conduct an investigation into misconduct in its workplace. Employers would do well to learn from some of the lessons in this decision.
Helen Roach was employed by a division of Presbyterian Support as a social worker in schools. It appears that, in the course of her work, she was in a counselling relationship with a Mr Richard Pepper. Mr Pepper was in a personal relationship with one of the teachers at Nawton Primary School, Ms Sherryn Hill.
The origin of the disciplinary matter was in a complaint made by Hill that Roach had entered into a sexual relationship with Pepper whilst counselling him.
Presbyterian Support treated Hill's complaint seriously. It carried out an investigation over a period of two months. That investigation started with a close examination of Hill's complaints. After some initial inquiries, Hill's complaint was reduced to a written document. An investigator then interviewed a number of relevant people, and summarised their evidence in written statements.
Roach, who had been made aware of this investigation process, was then given copies of the written complaint, and statements of evidence, and asked for her response.
After this meeting, the investigator was presented with some further information - being a written statement by Pepper "confirming" that he had been in a sexual relationship with Roach, and alleging that Roach had given him prescription mediation (Prozac). A copy of this statement was provided to Roach, and she was given a subsequent opportunity to provide her response to it.
After this process had been completed, the investigator formed her conclusions which she summarised in a letter to Roach. In summary, the investigator concluded that Roach had been in a sexual relationship with Pepper while counselling him, that this constituted a breach of relevant codes applying to Roach, and that dismissal was justified. Roach was accordingly dismissed from her job.
Roach challenged this decision, and argued that she had been unjustifiably dismissed. She made a variety of arguments in support of her challenge, some of which were technical (for example, that the investigator did not have a disciplinary code of conduct in front of her when she made her decision to dismiss), while others were more substantive (the investigator acted improperly by relying significantly upon Pepper's evidence - because Roach had a superior employment record, and that her evidence should have been preferred over that of Pepper).
The Employment Relations Authority rejected Roach's challenge. In doing so, it relied upon two well established principles:
- In a disciplinary investigation, the employer must give notice to the employee of the specific allegation of misconduct, provide a real opportunity for the employee to attempt to refute the allegations, and then engage in an unbiased consideration of the matter. Small deviations from an ideal process may be permitted, provided that the overall process remains fair.
- A Court does not sit in the place of the employer, and may not substitute its own decision for that of the employer. Its task is to consider whether the decision to dismiss was one which a fair and reasonable employer could have taken (rather than would have taken).
In this case, the Authority was convinced that Presbyterian Support did not make the decision to dismiss Roach lightly or in haste. It had undertaken a thorough inquiry before coming to its conclusions. It may have been that there were some minor deviations from perfection in the process adopted by Presbyterian Support, but these deficiencies were not sufficient to make the overall process (and its outcome) unfair.
Of particular significance, the Authority noted that some of the witnesses that provided evidence were of dubious character, and possibly had ulterior motives. It was, however, satisfied that Presbyterian Support was aware of these matters, and had taken them into account in forming its conclusions. Accordingly, it was not for the Authority to impose an alternative interpretation on the evidence carefully gathered and considered by the Employer.
This case provides a helpful illustration to employers faced with the prospect of conducting an investigation into misconduct (particularly involving serious allegations and/or personal matters). The employer "threw its flag" only after a careful consideration of the incident which was the subject of complaint. It survived the employee's challenge because, in effect, it had ensured that it played by the book.
Finally, one other observation is relevant. In this case, the employer greatly assisted itself by recording its decision in writing - and in sufficient detail to allow the Authority to see its reasoning, and the matters taken into account. In other words, the written evidence of the outcome of the process provided reliable information for the Authority in the course of its later "video review".
