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Employment problems on the inside
I can't say that I have always been a fan of Stephen King.
I understand that, outside of JK Rowling, he is probably the most popular author of the 20th Century. I suppose, however, I'm just not the sort of person that reads stories about murderous cars or crazed lunatics in abandoned resorts.
My opinion of King's work did, however, change substantially when I found out that, in addition to this horror genre, he is also responsible for the creation of two of the best prison drama movies ever made - The Shawshank Redemption and The Green Mile.
Prisons are really great fodder for writers. By their nature, they present a complex, and isolated, society of people - some of whom inherently wish to escape, and others who have the job of denying them.
But what about employment problems in prisons? Do they arise - and how are they handled?
A recent decision illustrates some specific difficulties that are presented because of the nature of the prison "society" - and also about problems that may arise where the employer fails to follow proper procedure in response to employment problems.
The plaintiff in Jensen v Department of Corrections (Unreported, 15 December 2003, Employment Court, Auckland) was a female corrections officer employed at Waikeria Prison near Te Awamutu. Ms Jensen had worked in her role for more than nine years. All of the inmates at Waikeria Prison were male - and most (but obviously not all) corrections officers there were also male.
In short, therefore, Jensen was one of the few women in the workplace at Waikeria Prison.
The prison was divided into "units" for administration purposes - with each "unit" containing a relatively small number of inmates. Jensen shared responsibility for the administration of one of these units.
In April 2000 an inmate within Jensen's unit wrote to the unit manager making a number of allegations of unlawful conduct. Several of these allegations implicated Jensen - including claims that she had brought unauthorised food into the institution for certain inmates, that she had arranged an unauthorised special visit for a particular inmate - and, most significantly (at least for the purposes of the Court's consideration), an allegation that Jensen had engaged in sexual intercourse with a particular inmate.
As one might expect, these allegations were viewed very seriously by Jensen's employer. It arranged for a preliminary investigation to be conducted. The two investigators responsible for this exercise concluded that several of the allegations against Jensen (not including the allegation of sexual intercourse) could be corroborated. They also included that, on the balance of probability, it was "highly likely" that there had been an "inappropriate relationship" between Jensen and the inmate named in the complaint.
Jensen was away from the workplace on sick leave at the time that this preliminary investigation was concluded. Her unit manager telephoned her and requested that she return to the prison to deal with a "serious matter". The unit manager declined to say more about the matter, although he suggested that she have a "support person" with her when she arrived to discuss the matter.
Jensen's preferred support people (including union representation) were unavailable on short notice - and ultimately another employee of the prison (who was not briefed about the circumstances of the meeting) acted as Jensen's support person. The unit manager read out a letter to Jensen which had little detail about the complaints that had been made against her - and which failed to annex certain documents which were said to be relied upon.
An investigation into these different complaints followed. In the course of that investigation, Jensen admitted wrongdoing in respect of some of the complaints - although she vehemently denied the complaint about sexual misconduct.
Ultimately, the employer completed the investigation, concluding that Jensen should be counselled in respect of the incidents for which she had admitted responsibility - and deciding to discontinue any consideration of the complaint concerning sexual misconduct.
Understandably, Jensen was upset and traumatised by the entire investigation process. It took a toll upon her personal health - which also impacted her ability to perform her job. Although the complaint which Jensen had firmly rejected was not taken any further by the employer Jensen was dissatisfied with the status quo which remained after the investigation process. In essence, she sought to obtain some confirmation by the employer of her innocence, and also wanted the inmate - who had made what she considered to be mischievous complaints against her - prosecuted. Accordingly, she brought a claim in the Employment Court against her employer seeking these different things, together with compensation.
The Court concluded that the employer had breached its contract with Jensen in a couple of serious ways. First, the Court said that the employer should not have required Jensen to attend the workplace to hear about these complaints when she was absent on sick leave. Secondly, the employer inappropriately denied Jensen access to proper representation at that first meeting. Finally, the employer failed to provide Jensen with sufficient information about some of the complaints that Jensen was asked to answer. Although these procedural flaws were ultimately corrected, Jensen was unfairly denied a reasonable opportunity to consider the essence of the complaints made against her.
A significant number of other allegations made by Jensen against her employer were, however, rejected. The Court refused to uphold a raft of allegations of breach of contract relating both to the way in which the investigation process was conducted, and its effects upon Jensen. It also rejected Jensen's claim that the employer should prosecute the original claimant.
Importantly, however, the Court gave careful consideration to a number of arguments made by Jensen in response to the complaint about sexual misconduct. It concluded that, based on the information available to it, the various allegations made by the inmate about sexual misconduct were all false.
In the event, the Court concluded that Jensen deserved some compensation in respect of the identified contractual breaches - and left it up to the parties to attempt to reach agreement about an appropriate level of such compensation. The Court did, however, comment that Jensen's claim for $100,000 in compensatory damages was unrealistically high.
This case illustrates some of the real difficulties that can arise where serious allegations are made against an employee. Although an employer must always follow investigation procedures which are fair, this is even more relevant in the case of serious allegations (such as sexual misconduct). The nature of such allegations is such that they are liable to cause high emotion and distress (potentially affecting health - irrespective of their truth). And, as this decision illustrates, even where an investigation concludes that allegations have not been made out, preservation of the employment relationship may require more to be done.
