News
The presumption of innocence
First published in The Independent, 20 June 2007.
Arguably, one of the most spoken legal phrases is one of the least accurate: a person is innocent until they are proved guilty.
Think about it for a moment if you will.
The saying presupposes a person's guilt - and simply issues a caution about timing. The person will, in due course, be found guilty - but until then, you must suppose that they are innocent.
How bizarre: and how wrong. But also, how significant.
The adage has a particular meaning in the context of employment matters. It is not uncommon for an employee to be accused of committing misconduct at work which, if proven, could also constitute a crime.
But why not wait until they are proven guilty by a court until sacking them?
And therein lies a trap for employers.
If the employer accuses the employee of committing the criminal wrongdoing, it may oblige itself to wait for the outcome of the criminal process before being able to dismiss. That may mean waiting months while a matter is brought on for hearing at court. It may also mean that the employer is wedded to any outcome in the criminal process - including (for example) a decision by the Police not to prosecute, or the outcome of diversion instead of conviction.
The employer can avoid this seemingly unfortunate outcome by not charging the employee with the criminal offence - but instead making an accusation of a breach of an employment obligation. Such a breach can be separately investigated by the employer and a decision on a disciplinary outcome made in advance of any criminal process.
This alternative can be of great advantage to an employer concerned about delay, or the comparative fickle nature of Police prosecutions.
And the employer may apply the standard of balance of probabilities in determining wrongdoing - which is an easier threshold than the criminal burden of beyond reasonable doubt.
But doesn't it seem a bit odd if an employer finds an employee guilty when the Police process does not result in a subsequent conviction for the same thing?
An outcome along these lines was recently considered by the Employment Relations Authority in Tauhore v Farmers Trading Company Limited (Unreported, Employment Relations Authority, Wellington, 25 May 2007).
Ms Tauhore was an employee at the Farmers store in Masterton. A co-worker alleged that she had become embroiled in a personal conflict with her - associated with an accusation that the co-worker was soliciting the affections of a man upon whom Tauhore had her own designs.
The allegations were serious. The co-worker said that Tauhore had sent abusive text messages to her - and, significantly, that she had assaulted her.
The employer was understandably concerned when these matters were brought to its attention. They had a direct bearing upon the relationship between the two co-workers - and probably also others in the workplace who knew about the allegations.
The employer obtained a complaint from the co-worker, and undertook an investigation. Ultimately, it formed the view that the complaints were made out - and dismissed Tauhore.
The co-worker also complained to the Police. A prosecution was mounted - but resulted in Tauhore's acquittal.
Perhaps understandably, Tauhore was disconcerted by these apparently disparate outcomes. How could her employer reasonably find her guilty, when a court had decided to acquit her?
The Employment Relations Authority provided a succinct answer. It held that Farmers had acted as a fair and reasonable employer by deciding, on the balance of probabilities, that the complaints before it had been made out.
It found that Farmers had not predetermined the matter - and that the employer was not committed to mimic the outcome of the subsequent criminal trial.
In that context, the subsequent findings in the criminal proceeding were irrelevant. The Authority also noted that the standard of proof required for a criminal conviction was higher than that faced by the employer - which may have explained the two different outcomes.
All of these different factors meant that, in this case, the employer was able to justify a dismissal in circumstances where criminal conviction was not obtained for the same allegations of wrongdoing.
Employers would be well advised to take heed of this decision - and to ensure that if it is desired to investigate - and take action - independent of a criminal proceeding , then allegations should be made carefully - and investigated separately.
