Court of Appeal says don’t lie in a disciplinary interview

Court of Appeal says don’t lie in a disciplinary interview

The Court of Appeal refused to grant an employee leave to appeal an unfavourable decision of the Employment Court. The employee was attempting to appeal their dismissal for misleading the employer during a disciplinary interview.

The case related to a Council manager who had allegedly broken Auckland City Council’s hiring policy, by the employment of a temporary worker. Interestingly, the allegation itself was only a misconduct allegation and accordingly if the Council had found that the allegation was true, it would not have been entitled to dismiss the employee; it would have only been able to formerly warn the employee.

However, the employer became concerned that the employee had not been truthful in the interview. As a result, it added a new and more serious ground to the disciplinary proceeding – being dishonesty, and ultimately dismissed the employee on that basis.

two people in a disciplinary meeting

“I do not accept, however, that an employer who becomes concerned that an employee is not being truthful in his/her responses is obliged to conclude a disciplinary process that is already in train and then embark on a new process, or initiate parallel processes. That would lead to unnecessary complexity, delay, and inefficiency.”

Most managers and human resource officers are of the view that it is possible to dismiss in this way for such reasons. I personally fall into the camp that thinks, provided a new allegation is put fairly and response by the employee allowed, the practice is acceptable.

However, there was until now the issue of a decision of the Employment Court, namely, Macadam v Port Nelson Ltd (No 1) where the Chief Judge asserted:

“As a general rule, an employee who is called to answer an allegation that he has been guilty of conduct of a particular kind cannot be dismissed if suspicion emerges during the course of an inquiry into that allegation that the employee may have been guilty of conduct of a different kind, including lying to the employer. That needs to be the subject of a separate set of disciplinary proceedings.”

This was argued to mean that the employer had to commence a new disciplinary procedure in respect of the allegation of misleading conduct. Quite rightly, in my view, the Court of Appeal did not agree and endorsed the following:

“I do not accept, however, that an employer who becomes concerned that an employee is not being truthful in his/her responses is obliged to conclude a disciplinary process that is already in train and then embark on a new process, or initiate parallel processes. That would lead to unnecessary complexity, delay, and inefficiency.”

For my part, I consider that this is undoubtedly the correct position as it avoids the unnecessary and complex procedure that has dogged employment law in New Zealand and made it difficult for employers to navigate the disciplinary process.

I also note that it is my view the best thing an employee can do in many disciplinary circumstances is fall on the sword at the earliest point of time and offer a profuse apology. This must be taken into account as a factor in the employees favour given the decision of X v Auckland District Health Board. All moral positioning aside, and coming from the approach of pure pragmatism, unless you are an evil genius, lies are incredibly difficult and complex to maintain. Employees who attempt to mislead are invariably caught out, with few exceptions… dare I say it – the truth may very well set you free, (although you might have to absorb a warning)!

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