Obligations when the outcome appears to be certain…

I’m no expert on French law but when I read recently that Racing 92 President Jacky Lorenzetti was reported to have said that former All Blacks lock Ali Williams will soon be fired following his arrest for allegedly buying cocaine, it got me to thinking about the application to NZ employment law.  Really it’s just another example of my ability to relate almost everything back to employment law.  You should see me read the newspaper!

A question we frequently get from clients is how much evidence do you need?  If you see someone on CCTV camera footage removing property from your business premises, or if they are arrested while driving a company car, for example, do you still need to go through a process?

The answer is yes, pursuant to section 103A of the Employment Relations Act 2000.  Section 103A provides that the question of whether a dismissal or an action was justifiable must be determined on an objective basis, by applying the test: whether the employer’s actions and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time.  In applying that test, the Authority or Court must consider:

  • Whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
  • Whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
  • Whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and
  • Whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.

There is therefore a statutory focus on following a fair process when it comes to putting concerns to an employee and making a decision about, for example, terminating employment as a consequence.

Coming back to Mr Williams for a moment, his employer Racing 92 knows that he has been arrested for allegedly buying cocaine.  Williams has issued a public apology stating that he made a big mistake and is sorry but I don’t understand from the media reports (clearly I am not in France and close to this matter) that he has actually entered a plea.  It is reported he may be negotiating a plea deal.  It has also been reported that the French Rugby Union will conduct a disciplinary inquiry through its legal disciplinary commission.  But, I have to ask, what is the point if the Club President has already said that he will be dismissed?  I understand going through a process if a process is required, but going through a process when you have already publicly said what the outcome will be, seems like a waste of time to me.  In New Zealand it can’t constitute good faith and in fact worst case scenario, it is the opposite of good faith because it is a sham process.

Section 103A provides that the Authority or Court must not determine a dismissal or an action to be unjustifiable solely because of defects in the process followed by the employer if the defects were minor and did not result in the employee being treated unfairly.  Failure to follow any fair process cannot be a minor defect, but can you really argue that an employee is unfairly treated in circumstances where the conduct is admitted and the outcome as close to certain as can be?  You would hope that any employee in that situation would accept the outcome and that would be the end of the matter.  But if it isn’t, my following no process at all an employer may open themselves up to an avenue of challenge and the outcome may be a finding of unjustified dismissal but a significant reduction in remedies due to contributory conduct.  And the topic of 100% reductions is a blog topic for Tim for another day.



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