Allegations no basis for action

WORK TO RULE

MARY-JANE THOMAS
Last updated 07:49 15/01/2014
Mary-Jane Thomas
FAIRFAX NZ
Southland Times Work to Rule employment law columnist Mary-Jane Thomas

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OPINION: Anyone who has worked with me knows I am inherently suspicious of people who make allegations of wrongdoing against fellow employees but require anonymity.

When I act for employers, I usually advise that they should not act on complaints unless the person making the allegation is prepared to sign a written statement that can be given to the employee.

Ms R-T worked at a retirement village. The manager, Ms G-P, became aware of a number of items "going missing" from the facility and said that after she was not able to identify the culprit, she contacted the local community police and a constable came to investigate.

By September, 2012, thefts appeared to increase and Ms G-P was told by the family of a resident that money had been taken from the resident's wallet. Residents reported a laptop computer had been stolen but despite further investigation by the police it was not possible to identify who was responsible.

In October, 2012, Ms G-P was approached by a staff member who said that she would give information about the thefts but only if her identity was not revealed. The staff member (who also had a support person present when she met with Ms G-P) said that some chairs from the facility were in Ms R-T's dining room. The staff member also alleged that Ms R-T had said she had pots and pans from the facility given to her when they were no longer required.

Ms G-P contacted the police. The same constable went to the facility and was shown the dining room chairs. (The allegation regarding pots and pans could not be pursued as there was no way of identifying them from any others.) Ms G-P said she did not feel she could accuse Ms R-T without any evidence and she knew if she commenced a formal investigation into the allegations she would have to reveal the identity of the informant staff member and this was not possible as she had given an undertaking not to do this.

The constable said he would visit the home of Ms R-T and report back to Ms G-P. Ms G-P claimed that the constable led her to believe that the visit to Ms R-T's home would be "informal" and that the constable would not make any reference to the possibility of a theft of the chairs.

The constable visited Ms R-T's home on October 24 and (quite rightly) informed Ms R-T that he had information that she had allegedly taken items from the work place. Ms R-T said that the constable made specific mention of pots and pans and she allowed the constable to have a look around in her house.

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The constable reported back to the employer that he was satisfied there was no stolen property at the premises. While the dining room chairs at the home of Ms R-T were similar, they were a slightly different colour and there was evidence that the chairs were white plastic outdoor chairs that had been given to Ms R-T by her mother some years before.

Not unsurprisingly, Ms R-T was upset about the allegation. A meeting took place on October 25 and eventually Ms R-T resigned saying that the actions of the employer created a situation where she no longer had sufficient trust and confidence to continue in her employment.

First issue - was the resignation of Ms R-T in reality a constructive dismissal and if so was the dismissal unjustified?

The Employment Relations Authority asked whether or not the resignation was caused by a breach of duty on the part of the employer. The authority found that it was. The actions of Ms G-P involving the police whom she understood would undertake an "informal" investigation was unfair.

"The problem arises with the course of action adopted by Ms G-P is that at best she had received allegations from an informant who was not subsequently prepared to be identified, about unidentified pots and pans, and a less than accurate identification of chairs that were alleged to be in Ms R-T's possession. It appears that Ms G-P acted on what were very nebulous allegations from a possibly unreliable informant whom, presumably, was not prepared to make any real commitment by giving tangible evidence."

The authority found that the breach of duty by the employer occurred because the actions of the employer meant that Ms R-T "came under suspicion and investigation by the police, who subsequently came to her home, on the basis of an allegation made by her employer, acting on very nebulous information that she may have been involved in a dishonest activity that warranted the involvement of the police. All of which was proven to be unfounded . . . the breach of duty by the employer is that by involving the police in the manner that occurred without any material evidence of any wrongdoing was clearly conveying to Ms R-T that it did not have trust and confidence in her as an employee".

Once the authority reached that point, it concluded that the breach was of sufficient seriousness to make it reasonably foreseeable that Ms R-T would not be prepared to work under the conditions prevailing and accordingly she had been constructively dismissed. Ms R-T was awarded three month's lost wages and $5000 compensation.

» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to mary-jane.thomas@prlaw.co.nz.

- © Fairfax NZ News

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