14 June 2018
A recent Employment Relations Authority case highlights the important relationship between serious misconduct in the workplace and circumstances involving an employee that could attract the attention of the police. Thankfully while most allegations put to an employee fall well below the need for a police call to 111 that is not always true. For example an employee who is insubordinate towards their employer through the use of inappropriate language can and should be dealt with in house and there is no reason to escalate matters to the authorities. On the other hand transporting a lethal weapon in the employer’s vehicle and using that weapon to threaten a family would warrant police involvement.
In Nand v Idea Services Limited the Authority heard how an employee who had allegedly assaulted a client was dismissed for serious misconduct. Following termination the employee raised a personal grievance for constructive dismissal claiming he had been given an ultimatum: either resign or the police would be notified.
Having been dismissed the employee, citing personal circumstances then asked if he could resign instead. The employer considered the request and agreed to accept it and recorded the relationship ended by way of resignation.
As it turned out the employer did indeed contact the police the day of the alleged assault. That point was noted as having been discussed by parties during the disciplinary meeting. The Authority said the discussion around police involvement which took place then undermined the employee’s claim. Accordingly Employment Relations Authority Member James Crichton determined the grievance was without merit.
Pausing for a moment it may be helpful to consider alternative outcomes. Whether the alleged assault in the above matter was serious enough to warrant the police actually laying charges is not known and was not discussed in the determination and is not canvased here. However supposing for a moment that an employee’s conduct warrants criminal charges being laid against them; the employer may be tempted to think that by merely turning the employee over to the police the employment relationship problem is also sorted; perhaps a two birds with one stone approach to employment relations.
That is not case. The reason it is not essentially comes down to the two different standards that are involved. We all know from watching cop shows on television that a criminal matter must be proved beyond reasonable doubt. That is a high threshold and it is good that it is high to ensure justice is properly served. The sanctions involved in criminal matters can be quite serious and it is important for society that the authorities get it right by proving their case.
Employment relationship matters fall into the lower civil standard of the balance of probabilities. The balance of probabilities takes into account the circumstances involved and the decision maker who at least in the first instance is not a judge then considers the likelihood an alleged event occurred. Just like the scales held by the blind lady of justice, if the balance tips just one percent over to one side or the other then the threshold is met.
The take away lesson here is an employer must always initiate an investigation and conduct a disciplinary process and make a decision on balance. The employer must issue an outcome to the employee no matter what they may have done. If the police are also involved the employee may face even more serious outcomes but only if the allegation is proven in the proper venue beyond reasonable doubt.
Just as the police sometimes get it wrong, so too do employers. A situation where both the authorities and the employer failed to get it right involved the police going to the wrong work place and arresting the wrong person, which of course was not realized until much later. Having seen the employee being taken away by the police the employer summarily dismissed the employee with no investigation and no disciplinary process. Once the full picture developed it was too late and rather than getting his staff member back to work with an incredible story the employer received a personal grievance for wrongful dismissal.
David Browne | Solicitor
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