Bizarre behaviour but doctor wins job back

Naomi Cervin, Senior Associate | Wednesday 28 March 2007

A recent Employment Court decision which made headlines over its unusual subject matter is an important one when it comes to dismissals.

The case involved a doctor, who was dismissed by his employer, after, amongst other things, he took photos of his genitalia and attempted to email them to a co-worker. Despite his bizarre actions, the court ordered he be reinstated.

The key message for employers is this: the Employment Relations Authority or Court has clearly demonstrated it will examine all aspects of an employer's dismissal procedure for fairness and each step in the dismissal process will be thoroughly dissected.

Failure by an employer to reach the standard expected at any point may render a decision to dismiss unjustifiable and could lead to a decision to reinstate the employee.

Justifying dismissal

The relatively recent amendments to the Employment Relations Act 2000 on "justification" for a dismissal provide that a dismissal is only justified if, objectively speaking, the employer's actions, and how the employer acted, were what a "fair and reasonable" employer would have done in all the circumstances.  Any dismissal must therefore be both substantively justifiable ("the employer's actions") and carried out in a procedurally fair manner ("how the employer acted").

These elements were strongly emphasised in the Employment Court decision in X v Auckland District Health Board.

The case of Dr X

This case involved a senior physician "Dr X", whose identity is protected by court-imposed interim non-publication orders until the expiry of the appeal period, who had been employed by the Auckland District Health Board (ADHB) since 1977. 

Dr X raised a number of personal grievances over the ADHB's investigation process and its decision to dismiss him for serious misconduct.

The ADHB's investigation centred on a number of bizarre incidents involving Dr X, his photo-capable mobile phone, and the ADHB’s email system.  Dr X took several lewd photographs using his mobile phone, including photographs of his exposed genitalia, which he then attempted to send via his work email to a colleague. 

Unfortunately for Dr X, the email was unable to be delivered after he incorrectly entered the recipient’s address details.

He then attempted to remove the message from his email system by "deleting" it.  What he did not realise was that "delete" does not really mean "delete", as the message was simply moved to his "deleted items" folder. 

What happened next was three administrative assistants read the message as they had access to Dr X's inbox.

They did not immediately complain but when one later found another sexually offensive message in Dr X's inbox, she reported this to the ADHB.  This set the investigation process in train that eventually led to Dr X's dismissal.

Although the court described Dr X's conduct as "adolescent", "logically inexplicable" and "frankly stupid", the mistakes which the ADHB made in the course of its investigations proved fatal to its case – and resulted in the decision to reinstate Dr X. 

Understanding the deficiencies in this investigation and dismissal may assist other employers to address potential weaknesses in their own disciplinary procedures, and avoid the possibility of an adverse finding by the authority or court.

Complaint

If a complaint is made about a possible act of misconduct by an employee, an employer must assess whether the allegation has the potential to have substance and may require further investigation. 

If the assessment finds that the allegation is well-founded, an investigation should logically follow. 

However, prior to commencing the investigation, an employer should meet with the employee to outline the seriousness of the matter and provide the employee with a copy of the allegation, the possible consequences for the employee (i.e. dismissal) and the possibility of suspension (if contemplated by their employment agreement). 

The employee should be informed that as part of the investigation they will be asked to respond to the allegations and given a reasonable time to do so at a later meeting.

Disclosure of information

Employees who are under investigation must be fully informed of the specific details of the allegations that have been made, so that they have a chance to consider them. 

The employee is entitled not only to all of the allegations made against them, but also access to all of the supporting evidence that the employer will use to make its decision. This should include copies of statements provided by other employees if they are interviewed as part of the investigation. 

In X v ADHB, Dr X sought the details of the allegations against him a number of times before his first formal interview.  The court strongly criticised the ADHB's failure to provide this basic information, calling the employer’s complaint process "unfair and fundamentally flawed".

"Heads up"

The ADHB also misled Dr X as to who would be present at the interview meeting.  Not only did the ADHB tell Dr X that legal representation "probably won’t be necessary", they also suggested that he would only be meeting with "someone from HR".

This was far from accurate. Dr X was confronted by a senior employment practitioner, as well as other senior managers.  The court felt that this would have left Dr X with "a clear impression of imbalance, unfairness and even deception" from the outset. 

Put simply, fairness requires that the employee knows exactly who will be involved at any stage, what will be required of the employee and that the employee must be given the opportunity, and should be encouraged, to use legal representation at any stage in the process.

Interview

The employee must be advised of all matters that have arisen out of the investigation, then given a full and proper opportunity to give an account of events, or to mitigate his or her conduct.

This interview must be carried out with an unbiased attitude, and employers must genuinely take account of an employee’s responses.

In X v ADHB, the court particularly highlighted the need for employers to be "responsive and communicative" in this interview.  The ADHB's lack of communicativeness during meetings with Dr X was severely criticised. 

The court stated that "an employer investigating serious allegations made about an employee cannot simply act as a proverbial sponge, a non-communicative observer and critic."  An employer must follow up any explanation given by the employee at the interview and give consideration to its validity. 

Wearing "different hats"

One aspect of the investigation process that the court stressed was the importance of establishing and sticking to clear roles in an investigation. 

For example, a person involved in the investigative team should not also act as a confidential supporter of the person being investigated. 

This is because an employee may unknowingly impart information to a colleague, expecting that it will be kept confidential, only to find that it has been passed on to those investigating alleged misconduct.

Policy on disciplinary matters

Employers should also carefully consider and properly apply any company policies it has on dismissal.  In X v ADHB, for example, it was company policy for the CEO to be consulted before any doctor was dismissed. 

While the CEO was generally informed of Dr X's situation, the court felt that he was never really consulted, as he was simply provided with the conclusions made by those investigating the misconduct, and gave his consent to those conclusions. 

The ultimate decision: dismissal?

Having followed a full and fair investigation, the employer must then decide whether the employee's misconduct was so serious as to justify dismissal. 

The question is whether dismissal is what a fair and reasonable employer would decide in the circumstances. Interestingly, the court in X v ADHB decided that Dr X’s behaviour did not amount to serious misconduct and concluded that a fair and reasonable employer would not have dismissed him for two instances of "electronic misconduct".

Even if this had been a case of serious misconduct, the court stated that dismissal is not necessarily a "natural consequence" of such behaviour. 

Rather, employers must consider other sanctions or the possibility of using behavioural correctives as alternatives to dismissal.  Behavioural change strategies must not be rejected out of hand, as employees should be given the opportunity to learn from their unsatisfactory acts or omissions. 

However, recent case law also establishes that an employer does not have to be lenient simply because a "fair and reasonable" employer might decide to warn rather than dismiss the employee – if dismissal is a clear option for a fair and reasonable employer then such a decision will be justified.

The power of procedure

While it might appear surprising that Dr X, after being dismissed for his "bizarre" actions, was reinstated into his position by the court, after reviewing the ADHB’s investigation, the procedural shortcomings were too numerous to be ignored by the court.

X v ADHB shows the high procedural expectations that the employment authorities expect of employers. 

Employers should carry out their investigations into serious misconduct and decisions made as a consequence, expecting that every single stage of the process can be scrutinised and measured against the "fairness" benchmark. 

For further information, please contact your usual Bell Gully advisor or:

AUCKLAND

Rob Towner
Partner

WELLINGTON

Andrew Scott-Howman
Partner

Maria Berryman
Senior Associate

Matt McGoldrick
Solicitor