News
Investigating misconduct: a delicate tea ceremony?
First published in The Independent, 29 August 2007.
If you have ever been fortunate enough to visit the Old Bailey in London, you will probably remember the statute which adorns the building's rooftop. It is a statue of a woman, blind folded and holding scales of justice.
The concept, of course, is that justice should be blind - by which the intention is that decision makers should close their eyes to any suggestion of individual prejudices. Justice should operate without regard to such things.
The same is, of course, true in employment law. But one of the major differences in our jurisdiction is that many decisions - especially on allegations of misconduct - must be made by the employer, rather than an independent tribunal or Judge. In this context, it is the employer that must be a "blind" decision-maker, closing eyes to any suggestion of personal prejudice.
The way in which many employers seek to achieve adherence to this lofty ideal is through prescribed procedures which must be followed when allegations of misconduct are made. Put simply, those procedures are designed to ensure against any possibility of unfairness in the way in which an employer considers a workplace complaint.
Having said that, however, they can also provide a rod for an employer's back: a way in which an otherwise unmeritorious employee can complain about unfairness - based upon a departure from the prescribed process for considering complaints.
Achieving a balance between adherence to the ideals of fairness and ensuring a just outcome overall is sometimes difficult, as is illustrated by the Employment Court's recent decision in Pixie Eruera Morrison v New Zealand Post (Unreported, Employment Court, Auckland, 31 July 2007).
Pixie was a postie. She had worked in her job for over 30 years. One day in 2006 she was involved in delivering mail to shops in a particular mall. One of the shops which she visited on her run was McDonald's.
A complaint arose about the events which occurred in the McDonald's restaurant. Closed circuit TV footage suggested that a mobile telephone had been on the counter of the store prior to Pixie's arrival but that it seemed to disappear as she left.
Pixie's employer informed her that it had become aware of the footage and told her that, in essence, an allegation was made that she had taken the telephone. There was a meeting, at which a support person attended together with Pixie, although he was told to observe procedures and not to say anything unless asked direct questions.
Pixie provided an explanation about events. She said that she had been unaware that she had picked up a telephone and had only realised later that it had become mixed in with her mail. She said that she had taken the phone home and, overcome with embarrassment and concern about what to do, had disabled it by taking out its battery. She said that she was worried that if she took the phone into work she would be accused of stealing it.
The employer did not accept Pixie's explanations. It concluded that she had taken the telephone and made a decision to dismiss her. Pixie challenged this decision, alleging (amongst other things) that the employer had failed to follow proper procedure in the way in which it had investigated the complaint.
The Employment Court had agreed that there had been some flaws in the employer's process. It had taken into account a report about the incident which it had not put to Pixie for her comment. Further, the employer had apparently conducted an "experiment" in which it had tried to pick up a telephone by mixing it with a bag of mail. It had concluded that it could not be done and had taken this into account in rejecting Pixie's explanation. It had not, however, put this to Pixie.
Overall, the court concluded that the employer had failed to conduct itself in a way which would have been expected of a fair and reasonable investigator.
On the other hand, however, the court had little sympathy for Pixie's misconduct. Despite the flaws in the procedure adopted, the court found that Pixie's misconduct was so serious that she should be deprived of all remedies (except costs).
So, in the end Pixie succeeded in establishing a number of flaws in the employer's process but the substantive merits were against her. The net result was an outcome whereby she lost her job, and could not claim any remedies.
There are a probably at least two different ways one could view this situation.
On one hand, it is an example of a case where an employer failed to follow some of the procedures which are designed to ensure a fair investigation. To that extent, it did not proceed as a "blind" decision maker but rather with some aspects of unfairness.
On the other hand, however, a cynic might argue that the case was really about what had been captured on videotape: namely, an incident of misconduct which could not be explained. On the assumption that that conclusion is simply correct, relying upon procedural flaws to avoid the finding of misconduct would seem to be unfair.
The Employment Court's decision balanced these two considerations - leading to the outcome which resulted.
