9.05.2018

Criminal Law and Employment Law – when worlds collide

The obligation an employer has to be open and honest to its employees, active and constructive, responsive and communicative and not to mislead or deceive, is the exact same set of obligations that employees owe to their employer

The Sunday Star Times led with a front page article “Bayleys agent Tonya Spicer was sacked after police ‘leaked’ unlawful information to her employer”. The headline article continues with surprise that Ms Spicer, having been found not guilty of supplying methamphetamine could then be sacked by her employer.

The article contains many quotes from Ms Spicer expressing her shock and dismay at her dismissal and quotes from emails attributed to Bayleys in the North’s Director, Mark Macky. The employer apparently showed a significant amount of support for Ms Spicer during her criminal prosecution, and immediately after the trial. This included giving evidence on her behalf and a statement to staff that the “verdict clearly vindicates Tonya, who is simply an innocent victim”, “we feel strongly that we’ve done the right thing in supporting her” and she has “always acted with honesty, integrity and professionalism”. Following receipt of information from the Police, Mr Macky is then alleged to have accused Spicer of lying to him. According to the article, she was then dismissed.

While the focus of the article is on the Police’s disclosure of information, it also carries an underlying theme questioning how Ms Spicer, having been acquitted, could be sacked by her employer. So how can this be?! The Court found her not guilty! But she’s been fired anyway!

As always, it’s not that simple. Usually an employee’s criminal conviction (or indeed an employee being found not guilty) will have absolutely no impact on their employment. The reason for this is that an employer, in most circumstances, has no right to constrain the private activities of an employee and no right to sit in moral judgement on its employees. However, where the actions of the employee outside of employment bring the employer into disrepute or where a conviction places a significant restriction on the employee’s ability to carry out the job, e.g. prison, home detention or loss of licence (where being present at work or able to drive is necessary for the job) may impact on the employer.

In the article, the key point seems to have been that despite being acquitted, Ms Spicer has nonetheless been fired. However, if you read it closely, what actually seems to have happened is that she was not (allegedly) dismissed due to the allegations against her of supplying Methamphetamine. Rather, the allegation is that Ms Spicer lied to her employer. This, of course, is a very different allegation.

It has long been that employees owe an implied duty to their employer of fidelity. Fidelity, broadly speaking, is an obligation to be honest and not do anything that would harm the employer’s interest. In more recent times, the duty of fidelity was subsumed into the mutual obligation of trust and confidence, which then became the implied term of good faith, which then became part of the statutory obligation of good faith under section 4 of the Employment Relations Act 2000.

Most importantly, the obligation of good faith cuts both ways. The obligation an employer has to be open and honest to its employees, active and constructive, responsive and communicative and not to mislead or deceive, is the exact same set of obligations that employees owe to their employer.

And there is the point. It appears on the face of the article that Bayleys in the North has (at least initially) done everything that would be expected of a fair and reasonable employer. It did not jump to conclusions pre-trial but publicly, at least within the business, supported Ms Spicer through her ordeal dealing with a criminal prosecution before the courts, and after the verdict which acquitted her. Bayleys in the North went beyond giving Ms Spicer the benefit of the doubt, and openly supported her, even giving evidence for her at the trial.

However, lost in the article is that “Mackie accused Spicer of lying to him and she was sacked”. It appears from the article that whatever the alleged lie was, it relates to Ms Spicer’s prosecution. There is a reference to the Police providing information to Bayleys in the North, that the court did not consider was admissible in a criminal proceeding. However, the fact that evidence may not be admissible in a criminal proceeding, where the standard of proof is beyond reasonable doubt, does not mean that it is not admissible in the employment jurisdiction, which is a civil jurisdiction and a standard of balance of probabilities.

If indeed Bayleys in the North did receive information from the Police, the Company could have done one of two things. It could have done nothing; or it could have raised an allegation that something in that information was inconsistent with what Ms Spicer had told Bayleys, i.e. as the article said, the allegation that she had “lied”.

As long as Bayleys in the North followed a fair and reasonable process, and it could reasonably form a view based on the information before it (both from the Police and Ms Spicer) it could well be justified in dismissing Ms Spicer.

The reason has nothing to do with Ms Spicer being acquitted in the criminal prosecution. Ms Spicer’s dismissal in employment has everything to do with her conduct as an employee and, it would appear, whether or not she lied to her employer. That was an entirely different inquiry and one Bayleys in the North was entitled to make. Whether it was justified in reaching the conclusions that it apparently did, is another question; possibly one for the Employment Relations Authority.

As an aside, the other point of concern for Ms Spicer is a potential breach of the Privacy Act by the Police in (allegedly) disclosing the information that was apparently inadmissible in the District Court, to Bayleys in the North. That has its own possible grounds as a breach of the Privacy Act and/or a complaint to the Police Complaints Authority. However, whether or not the Police should have released that information does not mean that Bayleys in the North could not act on it as an employer.

So yes, while Ms Spicer may potentially have grounds for complaint under the Privacy Act, and while she may, of course, raise a personal grievance in relation to her apparent dismissal, it is important to be clear about the reason she no longer works for Bayleys in the North. And while at first glance, it may seem incongruous for a person to be sacked after a jury found them not guilty, the reasons may be something quite different.

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