Don't skimp on misconduct investigations

A recent ERA case (Field v Chief Executive of the Department of Corrections; [2011] NZERA Wellington 26) has highlighted the importance of engaging in a full, thorough and fair investigation before dismissing an employee.

Mr Field was dismissed following an investigation into allegations of sexual harassment made against him by a colleague. The Department had appointed an investigator to investigate the complaints, and the subsequent investigation report stated that there was evidence to show Mr Field had engaged in sexual harassment, threatening, abusive, and insulting behaviour and that he may have breached the Department’s code of conduct.

The Assistant Regional Manager accepted the facts and findings of the report and concluded that Mr Field’s behaviour was serious misconduct and dismissed him.

The ERA found that a fair and reasonable employer would have detailed the allegations that had been accepted from the report so that Mr Field could be clear what allegations he was facing. Mr Field was not given the opportunity to comment on the report’s findings before the manager accepted them. The report’s findings of “threatening and abusive and insulting behaviour” were not backed up with what evidence was being relied on. There was insufficient evidence and reasoning provided for how the manager concluded there had been sexual harassment and a breach of the code of conduct, and one of the behaviours complained of did not amount to sexual harassment in terms of the Department’s policy.

The ERA also found that the Department did not apply the required test as written in its own policy and the Department was unable to show that it could establish that Mr Field was guilty of serious misconduct to the necessary standard. Where there was a serious allegation, sufficient proof of the allegation to a high standard was needed. The evidence available at the time was based on a number of incidences that were not sufficiently detailed and lacking in first hand accounts of harassment by Mr Field.

The dismissal was therefore unjustified, and as Mr Field had been allowed to continue to work for the approximately 10 month investigation process, was able to be separated in the workplace from the alleged victim,and had showed willingness to cooperate and act appropriately and attend any training required, he was reinstated.
He was also awarded 23 weeks reimbursement of lost wages, together with a further $8,000 for injury to feelings.

It cannot be emphasised enough how important it is to institute a thorough investigation, and give the employee a full opportunity to comment on all allegations.