The Dangers Of Misleading Employers

The Dangers Of Misleading Employers

The recent scandal around Radio New Zealand’s Carol Hirschfeld has brought to light the dangers of misleading employers. Hirschfeld is currently in the news for denying a meeting with a politician. Her employers relied on this denial to assure the select committee that the meeting was purely coincidence. Hirschfeld has now resigned. Trust between employers and employees is essential to maintain working relationships. Employers rely on their employees to carry out their roles to the utmost standard because the employees represent them. From an employment lawyer’s perspective, it is always better to admit a mistake than to mislead an employer.

The Court of Appeal in Honda New Zealand Ltd v New Zealand Boilermakers Union (1990) affirms that “the telling of a lie, or even prevarication short of a lie, strikes at the fundamental requirement of honesty and good faith”. It is evident that dishonesty in the workplace is serious misconduct and can be grounds for a dismissal. Lawyers for employees would look to the Employment Relations Act 2000 to find the test for justification of a dismissal that an employer must satisfy in order to dismiss an employee. Section 103A(2) reads:

The test is 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 the dismissal or action occurred.

Griffith v Sunbeam (2006) is a case that involved an employee abusing the right to sick leave. The case details that the employer’s burden is to prove that they have carried out a ‘full and fair’ investigation into the conduct and found that it should be regarded as serious. It is not up to the employer to prove the conduct itself. The Court composed three questions to aid in determining whether the dismissal was justified.

  1. Did X conduct a full and fair investigation of Y’s conduct in relation to the issues of concern?
  2. Did that investigation disclose conduct capable of being regarded as serious misconduct?
  3. Was the decision to dismiss one that a reasonable and fair employer could have taken?

A full and fair investigation in this context included notifying the employee of the content of the meeting and that their employment was at risk. It also included the opportunity for the employee to rebut the arguments given by the employer. The investigation by Sunbeam found that Mr Griffith lied about the extent of his sickness and misled his employers as a result. The case details that, after satisfying the first two questions, other factors that might persuade the fair and reasonable employer not to dismiss must be taken into account.

Lying is capable of being serious misconduct, which is grounds for instant dismissal. A personal grievance claim can be placed under the Employment Relations Act 2000, but it is subject to the justification test in s 103A(2). If the employer can establish that they acted fairly and, in the circumstances, they concluded that the employee acted dishonestly to break their trust, dismissal may be justified. An employment lawyer would advise that the employee must be aware of the repercussions of acting dishonestly and note that disclosing a mistake or something they are unsure about is acceptable and common-place. An employer is obliged to provide assistance and training.

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